Release from court supervision

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NORTH LITTLE ROCK SCHOOL DISTRICT VS. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. deeendants LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. districts joint memorandum regarding standard of review On June 20, 1995, this Court entered, an Order instructing the Little Rock School District, North Little Rock School District and Pulaski County Special School District (collectively the "Districts") to submit motions identifying those provisions of their respective Desegregation Plans (the "Plans") requiring modification or from which the Districts seek withdrawal of federal court supervision. The factfinding for determining the potential for modification of Plans or release from supervision is to begin during a series of evidentiary hearings beginning August 30, 1995. In order to accurately identify those areas of the Plans which are appropriate for release from court supervision, it is incumbent that the Districts assess the proper standard for determining 1 "unitary" status. As indicated at last month's budget hearings, ^The Supreme Court has declared that the term "unitary" is not a precise concept and attempts to define it as such are of limited value. See Freeman infra. 112 S.Ct. at 1444. However, for purposes of this Memorandum, the Districts adopt the term "unitary" to signify compliance with the terms of the Plans of such sufficient nature to warrant permanent release from federal courtrecent opinions handed down by the United States Supreme Court involving issues or school desegregation (Missouri v. Jenkins, __ U.S. ___, 63 U.S.L.W. 4486 {June 12, 1995)
Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430 (1992) and Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630 (1991) leave uncertain the proper standard for release from court supervision. The Districts submit that the appropriate standard employs a two-part analysis requiring
i) good faith implementation of and ii) substantial compliance with the terms of their respective Plans. The Supreme Court has also identified a third standard. "whether the vestiges of past di scyimi nation ha[ve] been eliminated to the extent practicable. II Jenkins, 63 U.S.L.W. at 4491, quoting Freeman, 112 S.Ct. at 1446 and Dowell, 111 S.Ct. at 638. However, by settling this case on the terms adopted, a district's compliance with its plan is, by agreement of the parties, the elimination of the vestiges of past discrimination to the extent practicable. As such this standard is not appropriately of issue in this case. However, the recent budget hearings revealed that, while the Court may concur that the "substantial compliance and good faith standard is appropriate. the Joshua intervenors posit that an "outcome" or "results oriented" standard is applicable. Accordingly, the Districts respectfully request the Court to articulate formally the appropriate legal standard for the relinquishment of remedial control. Such a determination by this supervision. 2Court would significantly facilitate the Districts' ability to accurately identify those areas of the Plans which, in the Districts' estimation, are rice for resolution. The Supreme Court has recognized that, ''[u]nder our precedent, the [participants] are 'entitled to a rather crecise statement of obligations under a desegregation decree.'" Jenkins, 63 U.S.L.W. at 4494 (emphasis added). The Districts submit that a clarification of the appropriate legal standard for determination of unitary status is fundamental component of such precise statement and respectfully request this Court's guidance to that end. Good Faith Comcliance. A review of the decisions cited above, Jenkins, Freeman and Dowell, sets forth the Supreme Court's development of what has become the critical element of the determination of unitary status- -good faith. A finding of good faith compliance with a district's desegregation plan provides the Court and the adversely affected student population with assurance that the school district is committed to the educational needs of all children and that return to discrimination will not occur. The Dowell decision marked the Supreme Court's initial effort to delineate the appropriate legal standard for withdrawal of judicial supervision in desegregation matters which are approaching final resolution. In delineating the "good faith" element, the Supreme Court instructed that "[t]he District Court should address itself to whether the Board had complied in good faith with the a a a 3desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable." (emphasis added.) Dowell, 111 S.Ct. at 638. Subsequently, in Freeman, the Supreme Court reinforced this view holding that the critical issue was, "whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the court's decree and to those provisions of the law and the constitution that were the predicate for judicial intervention in the first instance." Freeman, 112 S.Ct. at 1446. (emphasis added) . In Freeman, the Court explained that a consistent record of compliance with plan terms by a school district was particularly revealing of its good faith commitment to eliminate all vestiges of past discrimination, id. Finally, in Jenkins the Supreme Court resolved any lingering doubts regarding the fundamental importance of good faith. The Court held that "the ultimate inquiry is 'whether the [school district] has complied in good faith with the desegregation decree since it was entered . II (emphasis added). Jenkins, 63 U.S.L.W. at 4491 (quoting Dowell, 111 S.Ct. at 638) . .is the Jenkins decision makes clear, there can now be little dispute that good faith represents the primary basis of inquiry when determining the appropriateness of relinquishment of remedial control. Such standard provides the clearest indication of a school district's intent to safeguard the interests of all students, regardless of race. 4Substantial Compliance. As indicated above, the second element of the two-pronged standard requires substantial compliance with the terms desegregation plan. of the In Dowell, the Supreme Court revealed that a rietp.nm*nation of unitary status required that a school district show that "the vestiges of past discrimination had been eliminated to the extent practicable. " (emphasis added). Dowell, 111 S.Ct. at 638. The Court was careful to couch such standard so as not to require inviolate adherence to the desegregation plan. Rather, the "to the extent practicable" standard seeks to achieve the dual purpose of providing districts the reasonable expectation of returning their schools to local control while simultaneously ensuring a schoolhouse free of discrimination. No desegregation plan is free from all criticism with regard to its effectiveness, but, as the Dowell Court recognized, the real test is II the good faith of the school board in complying with the [desegregation] decree." Id. This is accomplished when good faith. substantial compliance is demonstrated. In Freeman, the Supreme Court reiterated this test stating that among the factors to be considered in determining the appropriateness of ending court supervision was "whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn and whether retention of judicial control is necessary or practicable to achieve compliance with a decree and other facets of the school 5system. " Freeman, 112 S.Ct. at 1446. It is noteworthy that satisfactory is defined as "giving satisfaction sufficient to meet a demand or requirement, adeouate." American Heritage Dictionary. Rather than demanding flawless compliance, application of the term "satisfactory," evidences the Court's attempt to both ensure that school districts do not return to segregative practices while recognizing that, as a result of many external factors, inviolate compliance is not feasible. Rather, substantial, good faith compliance is sufficient. For example, the lengthy duration of many desegregation lawsuits dictates that changes in housing trends, educational testing tools, etc. will cause the original terms of a desegregation plan to become dated and ineffectual. See, 6^.0^, Freeman, 112 S.Ct. at 1447
Jenkins, 63 U.S.L.W. at 4495. This does render a district out of compliance, however. Id. The Joshua Intervenors appear to espouse an H alleviation of disparity" or "outcome-based" standard for determining satisfaction of the terms of the Plans. The Districts submit that the utilization of an outcome based standard for determination or compliance, unless specifically provided ror in the Pla rs improper. As discussed below, the Releases, which by their own terms are to be treated as contracts. specifically waive all additional claims based on actions taken before their execution and limit judicial inteirvention to matters of compliance with the terms of the Plan. Accordingly, as a matter of law, unless the Plan specifically provides for particular specific outcomes. such a standard is inapplicable. 6Furthermore, recognizing the plethora of factors which influence outcome based factors in the decades following the adoption of desegregation plans, the Supreme Court recently rejected any such outcome based standard in Jenkins. Just as demographic changes independent of de jure segregation will effect the racial composition of student assignments. Freeman, supra, at 494-495, so to will numerous external factors beyond the control of the [District] and the State effect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculus. Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the [District] will be able to operate on its own. Jenkins, at 63 U.S.L.W. at 4495. In Jenkins, the Supreme Court clearly rejected that an outcome based or results oriented standard as an inappropriate measure of compliance which is unrelated to a determination of unitary status. While the district court had determined that the Kansas City district had not reached its maximum desegregation potential because it remained at or below national testing norms, the Supreme Court nonetheless rejected such considerations holding that such a standard was "clearly not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary status. II Id. at 4494, Citing Freeman, 112 S.Ct. at 1445-46, and Dowell. Ill S.Ct. at 638. The Releases. A discussion of the proper legal standard for the dete3rmination of unitary status in the present matter is incomplete without a review of the release agreements (collectively referred 7to as the "Releases") executed by the parties on or about July 18, 1991. (See attached Exhibits Nos. 1, 2 and 3). It is important to remember that the Plans involved herein are the resul' of comprehensive settlement among all the parties and the State of Arkansas. As a result, all parties relinquished any right to further remedial relief based upon events and actions occurring before the execution of the settlement and accompanying releases. Thus, the only remedial entitlement any party now has, absent entirely new constitutional violations, is to the enforcement of the Plans. Anything beyond the Plans themselves is now beyond the jurisdiction of the Court. In short, the parties have agreed that substantial compliance with the Plans, as a matter of mutual a accord. eliminates the vestiges of past Hi grT-i Tni,nati on to the extent practicable. The terms of the Releases, one of which was executed on behalf of each of the three (3) Districts, make this indisputably clear: For and in consideration of its relinquishment of claims and commitments set forth in the Plans and the Pulaski County School Desegregation Case Settlement Agreement to which this release is attached (hereafter, "the Consideration"), the undersigned parties do hereby release, acquit and forever discharge the [Districts], its directors, administrators, appointees, employees. agencies, departments, their predecessors and successors (hereafter collectively referred to as "the Released Parties") of and from any and all actions. causes of action, claims and demands which the undersigned now have or may hereafter have arising out of or in any way related to any acts or omissions of any and every kind to the date of the execution of this release by the released parties which in any way relate to racial discrimination, segregation in public education. or to violations of other constitutional or statutory rights of school children, based on race or color, in the three school districts in Pulaski County, Arkansas.... the terms of this release are contractual and not a mere recital. It 8is further understood and agreed that the litigation now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1, et al. No. LR-C-82-866 and cases consolidated therein and their predecessors ... (the "1itigation") is to be dismissed with prejudice as to the [Districts] and the former and current members of its board named in the Litigation. for all purposes except that the Court mav retain This dismissal is final lurisdiction to address issues regarding implementation of the Plans. (emphasis added). Such review of the terms of the Releases reveals the substantial impact such agreements have on a determination of unitary status. The parties, including the Joshua Intervenors, have agreed that the measure of compliance on behalf of the Districts is provided for exclusively by the terms of the Plan. Such Release is, by its terms, of a contractual nature and as such represents the exclusive benchmark for the determination that release from court supervision is appropriate. To the extent a perceived requirement or result falls outside the express terms of the Plans themselves, it is an inappropriate matter for judicial review. As such, outcome or results oriented standards, if not expressly provided for by the terms of the Plans, are not appropriate measures of compliance. Conclusion. Central to all desegregation efforts is the goal of returning school district control to local government. The Supreme Court has repeatedly recognized that "dissolving a desegregation decree after the local authorities have operated in compliance with it ror a reasonable period of time properly recognizes that the 'necessary 9concern 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 di sicrimi nati nn . Dowell, 111 S.Ct. at 637
Freeman, 112 S.Ct. at 1445
Jenkins, 63 U.S.L.W. at 4495. To facilitate the Districts' and the communities' desire to return to local control, it is incumbent that the appropriate standard for determination of unitary status be clarified. Based upon the foregoing, the Districts submit that the appropriate standard employs a two-part analysis requiring: i) substantial and ii) good faith compliance with the terms of the Plan. Respectfully Submitted, M. Samuel Jones, Escuire WRIGHT, LINDSEY & JENNINGS 200 West Capitol Avenue 2200 Worthen Bank Building Little Rock, Arkansas 72201 Attorneys for PCSSD Christopher J. Heller, Esq. FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Little Rock, Arkansas 72201 Attorneys for LRSD JACK, LYON & JONES, P.A. 3400 TC3Y Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 (501) 375-1122 Attorneys for NLRSD By
CJ 577 Stephen W. Jo^'s #78083 Allen Carney #94122 10CERTIFICATE OF SERVICE I hereby certify that I have this 23rd day of August, 1995 delivered one copy of the foregoing via U.S, Mail, to the following: Christopher J. Heller, Esq. FRIDAY, ELDREDGE & CLARK 2000 First Connnercial Bldg. 400 West Capitol Little Rock, Arkansas 72201 Ann Brown OFFICE OF DESEGREGATION MONITORING 201 East Markham, Suite 510 Heritage West Building Little Rock, Arkansas 72201 M. Samuel Jones, Esquire WRIGHT, LINDSEY & JENNINGS 200 West Capitol Avenue 2200 Worthen Bank Building Little Rock, Arkansas 72201 Richard W. Roachell, Esq. ROACHELL AND STREETT First Federal Plaza 410 W. Capitol Avenue, Ste. 504 Little Rock, Arkansas 72201 John W. Walker, Escuire JOHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 11 Stephen W. Jonjss RELEASE OF ALL CLAIMS AGAINST THE MLRSD For and in consideration o: its relinouishment ox Claims and commitments set forth in the Plans and the Pulaski County School Desegregation Case Settlement Agreement to which this release is attached (hereafter, "the Consideration"), the undersigned parties do hereby release, acquit and forever discharge the NLRSD, its directors, administrators, appointees, employees, agencies, departments, their predecessors and successors (hereafter collectively referred to as "the Released Parties") of and from any and all actions, causes of action, claims and demands which the undersigned now have or may hereafter have arising oun 01 or wav related to any acts or omissions of any and every kinc the date oi the execution or IS release bv the released p les which in any way relate to racial discrimination. segregation in public education. or to violations of o er consr lonai or statutory rights oi school children. based on a or color. in the three school districts in Pulaski Arkansas. is understood and agreed tn the Con 3 on IS valuable and is civen full and al Comoro: ise oi disputed claims and ,e giving of the Consider not to be construed as an admission of any liability on the oart of anv o f the Released Parties beyond the liabi 1 ,v lounc t' date by the United States District Court lor A District of Arkansas and t^ a Court of Appeals icr EXHIBIT L2 Circui and that the terms or this release are con czual ar.c not a mere recital. It IS further understood and agreed that xca icn now pending in the United States District Court ror Eastern District or Arkansas, Western Division, entitled LittleRock School District vs. Pulaski County Special School District No. 1, et al, No. LR-C-32-866 and cases consolidated therein and their predecessors (including, but not limited to, Graves V. Board or Education of North Little Rock School District and Davis v. Board of Education of the Nor
h Little Rock School District (the "Litigation") is to he dismissed with prejudice as to the NLRSD and the former and curre: members of its board named in the T, igation. This dismissal IS final for all purposes except Court V a jurisdiction to address issues regarcing implemen ion or Plans . We have read t' IS release and had it la exp la US cur attorneys who a signed as witnesses hereto understand hat t^ a aoove relincuis' and commitments are full and al ai comprcmi cr a. all claims and cau or action. W e understanc event all parties r whi h there 1 c a signat' do not sign this -.-a I as co , the release is e a C on those parties that CO sign.3 EXECUTED this day of /Yly* I , ISSZ : WITNESSED AND APPRC'ZED: FRIDAY, ELDREDGE & CLARK LITTLE)ROCK SCHOOL DISTRIC' 2000 Firs Little Rock, .IR Conraercial Bldg, z- 72201 Tr^ident, Board of Direc By Christopher Helig^ / One of its Attorney^' * ie if EXECUTED THIS day of I J , 199^ by: WITNESSED AND APPROVED: WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank-Building Little Rock, AR 72201 PULASKI COUNTY SPECI DISTRICT NO. 1 By: By. 1 EXECUTED t day of ys President, Board of Direc if it WITNESSED AND PROVED: Ai EN LAW M A Professional Corporation 1200 Worthen Bank Bldg, Li tie Roc.k, AR 72201 3v K . Will 1 1 J 7 ARKANSAS ST EDUCATION , ISS'i ty: 50. = OF 1 By y la.CkC^'j c:- mar., One of torneys if EXECUTED t: IS day of I WITNESSED AND APPROVED: THE JOSHUA : 0 (NAJkCP) LEGAL DEFENSE FUND, . AND EDUCATIONAL , INC. A '^y Noma.n J One of i C.ta r.n neys LRSD Class 'ey/ and Pussiesnz .-.rkansas = e Roc? c z N.-J 4 JOHN W. WALKER, P.A. 1723 S. Broadway 3y I Lit t?e^Rock, AR 72201 NLRSD Class Rearss and President o: ths N By Jaim W. Walker arm w of Orre o its Attorneys * EXECUTED this ari') day of1 WITNESSED AND APPROVED: MITCHELL & ROACHELL 1014 w. Third Littr Rock, 122Q1 B' Richard W. Roachell One of its Attorneys 7 i-ittle Rock, Arkansas Branch ___________________ PCSSD Class Represent J iZ , 1991 by: KNIGHT INTERVENORS By. LRC^A Representative By /< PACT ^Repr^sehtai-lve 3 .ve By NLRCTA. ReoresantaFor PZLZASE OF ALL Ci I
: 1? C IMS AGAINST THZ PCSSD and in consideration of its relinquishment t- o: ciarms and commitments set forth in the Plans and the Pulaski County School Desegregation Case Settlement Agreement to which this release IS attached (hereafter, "the Consideration"), the undersigned parties do hereby release, acquit and rcrever discharge the PCSSD, its directors, administrators, appointees , employees, agencies, departments, their predecessors and successors (hereafter collectively razs. o to as "the Released Parties") of and from any and all actions. causes of action. claims and demands wh undersi St new have or may hereafter have arising cut or or in wav date ed to any acts or omissions of any and of the execution of this lease bv the released car a * o c which in any way relate to racial disc ration. segreg a or public education. or to violations cf ct. const 3 statutory rights or school c. Idri based on a cr color. in the three school districts Pulaski Co Arkansas. is understood and agreed that Consid IS valuable and is given in full and final compre: A cr disputed claims and that the giving cf the Considerat not to be construed as an admission or anv liabilitv cart of anv or the Released Parties bevend the liabili V to date by the United States District Court ror the T 3 c A EXHIBIT it 3 a2 District of Arkansas and the Court of Appeals tor & Zichth Circuit and that the terns of this release are co 3 1 and not a mere recital. IS further understood and agreed that the T_^ cation now pending in the United States District Court tor the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Soecial School District No. 1, et al, No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not liaitsd to, Zinnamon v. Pulaski County School District, LR-C-S8-154) (the "Litigation") is to be dismissed with prejudice as to the PCSSD and the former and cu rent members of its board named in e Litigation. This dismissal iS for all oosas except that the Court may retain ju: sdiction accress issues regarding implemen tion of the Plans. We have read this a 1 aa ca and had it explains c V our attorneys who have SLCIlsd as witnesses hereto anc we understand that the above referenced relincuishme: o
ciai and commitments are in 11 and final compromise o: a all claims and causes of action. We understand ti a event all parties ror ere IS a signature bl o e 1 c w do not sim this release, ths rslsase is effs tive anc me on those parties that do sicn.3 EXECUTED this -23 Of , 199 1 by: WITNESSED AND APPROVED: FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bide. LITTTLLEE ROCK SCHOOL DISTRICT Little Rock, AR Christopher Heiler/ One of its Attorneys 72201 * yi President, Board .of Directors EXECUTED THIS day of , 199^ by: WITNESSED AND APPROVED: ALLEN.LAW .FIRM A Professional Corporation' 1200 Worthen Bank Building ARKANSAS STATE BOARD OF EDUCATION Little Rock, AR 72201 BV^ 3y:_______________ _ H. William Allen One of its Attorneys Chainaaji, Board of Directors EXECUTED this of 'S WITNESSED AND APPROVED: JACK LYON & JONES, P.A. 3400 TC3Y Tower I by: NORTH LITTLE ROCK SCHOOL DISTRICT Little,Rock, AR 72201 5v y LI Bv I I I ^ejhen W. Joi^s One of its Attorneys President, Board of i u * 1r EXECUTED this day of , 1990 by: WITNESSED AND APPROVED: (NAAC?) LEGAL AND EDUCATIONAL DEFENSE FUND, INC. THE JOSHUA INTERVEHO By_____________________ Norman J. Chachkin One of its A.ttorneys Bv LRSp Class Reofe'san Bv 'O I and President, L. tie Rcc? Arkansas Branch of a N. 4 JOHN W. WALKER, P.A. 1723 S. Broadway Littie Rock, AR 72201 NLRSD'^Class Repres^.- and President r' iV8 of e Nor h 3y 2j3hn. W. Walker wne of its Attorneys , Little Rock, Arkansas Branch of the^NAACP 1 By_ PCSSD' Class Representative * * * It EXECUTED this day of , 1991 by: WITNESSED AND APPROVED: MITCHELL & ROACHELL KNIGHT INTERVENORS Lift Third Rock, 72201 By- By._____________________ Richard W. Roachell One of its Attorneys LRCTA Rea'resentative By, PACT' Repr^entatLve'' NLRCTA Ranresentative I 1 RELEASE OF ALL CLAIMS AGAINST THE LRSD For and in consideration of its relinquishment of claims and commitments set forth in the Plans and the Pulaski County School Desegregation Case Settlement Agreement to which this release is attached {hereafter, "the Consideration"), the undersigned parties do hereby release, acquit and rorever discharge the LRSD its directors, administrators, appointees. employees, agencies, departments, their predecessors and successors (hereafter collectively referred to as "the Released Parties") of and from any and all actions, causes or action. claimsand demands which the undersigned now have cr may hereafter have arising out of or in any way related to any acts or omissions of any and every kind to ths date or a execution of this release by the released par es w way relate to racial discrimination, segregati cublic education, or to violations of other const T_ cr statutory rights of school children. based on race cr ccicr, in the three school districts in Pulaski County, Arkansas. is understood and agreed that the Consideration V a i and is given in full ano final compromise cr dis d cla :s and that the giving or the Consideration is to construed as an admission of any liabil y on the parr or a a of the Released Parties beyond the liab '/ found to 1 C i t the United States District Court for the Eastern Dist ict cr Arkansas and the Court of Aooeals for the Eighth Ci, uit and I exhibit
AUG-28-95 MON 11:49 SUSAN W WRIGHT FAX NO. 5013246576 FILED P. 05 U.S. DISTRICT COUnT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT 'AUG 2 3 1995 OF ARKANSAS McCCRMACK. CLERK By:. O?CL:"i< LITTLE ROCK SCHOOL DISTRICT, ET AL. PLAINTIFFS V. NO. LR-C-32-SSS PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE W. KNIGHT, ET AL. INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF LRSD^S MOTION FOR PARTIAL UNITARY STATUS The Little Rock School District (LRSD) has moved that this Court withdraw supervision with regard to the following aspects of the LRSD Desegregation Plan: a. Home Instructional Youngsters (HIPPY)
Program for Preschool b. c. d. Rockefeller Eaurly Childhood Program
Parkview Science Magnet Program
and, Job Training Partnership Act/Summer Program (JTPA). Learning A district court may withdraw supervision with regard to discrete aspects of a desegregation plan where "a school district has demonstrated its commitment to a course of action that gives full respect to the equal protection guarantees of the Constitution." Ereem^h V. Pitts, 503 U.S. 467, ___, 118 L.Ed.2d 108, 134 (1992). Among the factors to be considered by a district court in determining whether it should withdraw supervision over one or more aspects of a desegregation plan are:AUG-28-95 KON HUS SUSAN W WRIGHT FAX NO. 5013246576 P. 06 [W]hether there has been full and satisfactory compliance with the (desegregation] decree in those aspects of the system, where supervision is to be withdrawn
whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system
and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment , to the whole of the court's decree and to those provisions of the law and the constitution that were the predicate for judicial intervention in the first instance. Freeman. 118 L.Ed.2d at 134-35. In considering these factors, "the District Court must bear in mind that its end purpose is not only 'to remedy the violation' to the extant practicable, but also 'to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.'" Missoiiri Jenkins, ___ U.S. ___, 1995 WL 347363, *17 (1995). Consideration of above factors indicates that LRSD should be released from supervision with regard to those aspects of the LRSD desegregation plan identified above. LRSD has substantially complied^ in good faith with the LRSD Desegregation Plan with regard to those aspects of the plan identified above for a reasonable period of time.^ Continued judicial supervision is not necessary ^LRSD hereby adopts and incorporates by reference the Districts' Joint Memorandum Regarding Standard of Review filed August 23, 1995. 2, Board of Education v, Dowell. 498 U.S. 237, 243 (1991)("Dissolving a desegregation decree after local authorities have operated in compliance with it for a reasonable period of properly recognizes that 'necessary concern for the important values of local control of public school system 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.') (emphasis supplied). 2AUG-28-95 MON 11:50 SUSAN W WRIGHT FAX NO. 50132465(6 P, 07 to achieve compliance with other aspects of the LRSD Desegregation Plan. Finally, by its good faith implementation of the LRSD Desegregation Plan, LRSD has demonstrated to the public and to black parents and students its good faith commitment to the whole of the LRSD Desegregation Plan and to a course of action that gives full respect to the equal protection guarantees of the Constitution. Therefore, this Court should withdraw supervision with regard to the following aspects of the LRSD Desegregation Plan: a. Hone Instructional Youngsters (HIPPY)
Program for Preschool b. c. Rockefeller Early Childhood Program
Parkview Science Magnet Program
and, d. Job Training Par-tnership Program (JTPA). Act/Summer Learning Respectfully submitted, Christopher Heller John C. Fendley, Jr. FRIDAY, ELDREDGE & CLARK 2000 First Commercial Building 400 West Capitol Avenue Little Rock, Arkansas 501/376-2011 72201-3493 Attorneys for LRSD By: Christopher Hell Bar No. 31033 7 3AUG-28-
MCN 11 u SUSAN M WRIGHT FAX NO. 5013246576 P. 08 CroTI7ICAT3 OP gBHVTCT I certify that a copy of the foregoing motion has been served on the following counsel on this 23rd day of August, 1995. Mr. John Walker JOHN WALKER, P.A. 1723 Broadway Little Rock, AR 72206 (MAILED) Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 (MAILED) Mr. Steve Jones JACK, LYON & JONES, P.A. 3400 Capitol Towers Capitol & Broadway Streets Little Rock, AR 72201 (MAILED) Mr. Richard Roachell Roachell and Straett First Federal Plaza 401 West Capitol, Suite 504 Little Rock, AR 72201 (MAILED) Ms Arm Brown Heritage West Bldg., Suite 510 2 01 East MarJchaa Street Little Rock, AR 72201 (MAILED) 4 .JAN-10-96-WEU 11:24 Fax SUSAN M WRIGHT FAX NO. 5013246576 P.Ol JOHN W. WALKER RALPH WASHINGTON MARK BCRNETTE AUSTIN PORTER, JR. John w. Walker, p.a. Attorney at Law 1723 Broadway Little Rock, Arkansas 72206 TajyiiONElSOl) FAX (501) 3744187 U.3. OISTHICT COURt EAST6RNS------- ARKANSAS n 4 n ,j |EP J 9 JAMES Wy McC^^5k{^esjj fiy-* fiy:.
U7I aa n SEP CURK September 15, 1995 Honorable Susan Webber Wright United States District Judge 600 West Capitol Little Rock, AR 72201 Re: LRSD V PCSSD Dear Judge Wright: In response to the Court's directive that we should provide Her Honor with our response to the districts' motions for release of court supervision in certain areas of the respective settlement plans, Joshua submits the following response. 1. to the North Little Rock School District, Joshua has no objections to their request for release of court monitoring and supervision in the area of their assignment plan. We note that they have withdrawn the areas for your consideration in the areas of extracurricular activities and gifted and talented programs. We further note that the District may refile Its motion regarding at some future date. 2 . respect to the Pulaski County Special School District, Joshua objects to all of -their requests for release of court supervision and intend to put on evidence to rebut their claims that they are in substantial good faith compliance with these areas which of their desegregation plan which they contend are working. We are unable to state at this time who our witnesses will be, however. 3. Withrespect to the Little Rock School District, Joshua has no objection to their request for release of court monitoring and supervision in the area of the Job Training Partnership/ Summer Learning Program (JPTA). Our lament is the district's failure to apply Mr. Gillespie's experiences in any meaningful way to other district activities and programs. We note, however, that LRSD has committed to continuing this program and hopefully they will prepare more meaningful assessments of its effectiveness with in relation to remediating achievement disparities between black and white students. Joshua does, however, object to release of court monitoring and supervision in the areas of HIPPY, Rockefeller Early Childhood Program and the Parkview Science Magnet Program. We intend to put on testimony We intend to put on testimony ^o' 215 :> fiJAN-W-96-'MEl) 11:26 SUSAN U WRIGHT FAX NO. 5013246576 P.Ol to rebut Little Rock's contention that they are in substantial good faith compliance with these areas of their desegregation plan. We have not determined the number of witnesses we intend to call
however, I will need some discovery and preparation time. I expect that I will need at least two days to present our position with respect to Little Rock and one day with respect to Pulaski County. I have reviewed my calendar and due to my trial schedule and preparations, appellate court schedule, hearings before Her Honor on other matters and other commitments, I will not be able to prepare for the case until sometime next year. We, therefore, request that you have Ms. Carpenter check your calendar for a week sometime early next year for the continuation of these hearings. your Thank you for your cooperation. Respectfully submitted, JWW
js cc: All Counsel of Record Ms. Ann Brown p. FEB A- 1996 U U tic* kj Otfice ol Desearegaiiun :- IN THE UNITED STATES DISTRICT CC^Ir^n aRXANSA3 COURT 9 EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. LR-C-82-866 JAMES W. MccBMJK 3y:------------------------------------------- DEP CLERX PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE KNIGHT, ET AL. INTERVENORS STIPULATION FOR ORDER The parties, the Court and its monitoring arm, the Office of Desegregation Monitoring ("ODM"), are engaged in the process of determining which areas of the Districts' respective desegregation plans can be released from Court supervision and monitoring pursuant to the principles of Freeman v. Pitts, 112 S.Ct. 1430 FEB 0 9 !996 (1992) . The parties have concluded their assessment of compliance by the Districts with certain discrete areas of the desegregation plans. The parties now agree, with the concurrence of the ODM, that the following Districts may be released from Court supervision and monitoring in the following areas: 1. The Pulaski bunty Special School District should be released in the areas of its library media program, its vocational education program. its guidance and counselling program, its elementary school gifted and talented program, and its staffing of elementary classroom teachers with the proviso that the PCSSD will continue to attempt to place more minority teachers at the K-3 levels as positions become available and new teachers are hired. 12 . The Little Rock School District should be released in the areas of Multicultural Curriculum (LRSD Plan pages 63-80), Vocational Education (LRSD Plan pages 98-105), and as respects its Computerized Transportation System (LRSD Plan pages 227-228). 3 . The North Little Rock School District should be released as respects its elementary gifted and talented program. The parties further agree that, with the involvement of the ODM, that they will continue the process of assessing what additional areas of the desegregation plans are ripe for release from Court supervision and monitoring to identify what areas of the desegregation plans remain deficient in terms of compliance and to continue working toward the ultimate goal of complete release of each school district from Court supervision and monitoring. SO STIPULATED this 9th day of February, 1996. PULASKI COUNTY SPECIAL SCHOOL DISTRICT BY: M.,Samuel Jones LITTLi ROCK,SCHOOL STRICT B I NORTH LITTLE ROCK SCHOOL DISTRICT By: I Stephen W. J s 2 JOSHUA INTERVENORS I By: John W. Walker / J KNIGHT INTERVENORS I By: Travis N. Creed, Jr. 3 FILED U S, OISTRiCT COURT EASTERN DISTRICT ARKANSAS MAR 1 I 1996 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION JAMES By
3 W McqORMACK, Cl^RK K-X OEP CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT No. 1, ET AL MRS. LORENE JOSHUA, ET AL -I DEFENDANTS INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS SERVICEMASTER MANAGEMENT SERVICES, A Limited Partnership -i.ng INTERVENORS MEMORANDUM AND ORDER Before the Court are a number of motions (listed in the order filed) which the Court now addresses: (1) motion of the Pulaski County Special School District ("PCSSD") to withdraw supervision from three discrete areas of the PCSSD plan [doc.#2481]
(2) motion of the Little Rock School District ("LRSD") for partial unitary status [doc.#2483]
(3) motion of the Joshua Intervenors ("Joshua") to enjoin the LRSD from entering into a service contract without following bidding procedures, requests for information and without prior involvement of Joshua [doc.#2506]
(4) motion of PCSSD to clarify the PCSSD desegregation plan [doc.#2520]
(5) motion of Joshua for the Court to set forth in detail the continuing obligations of the LRSD under the desegregation plan with respect to faculty and staff desegregation [doc.#2544]
(6) motion of PCSSD for an Order regarding portable buildings [doc.#2546]
(7) motion of LRSD for an Order dismissing this case without prejudice with respect to LRSD, PCSSD, and the North Little Rock School District ("NLRSD") [doc.#2573]
(8) motion of Joshua for reconsideration of 2 6 4 the Court's Order of December 11, 1995, and for completion of the hearing [doc.#2594]
and (9) motion of PCSSD regarding the replacement of portable buildings with permanent construction. dated October 25, 1995 [doc.#2612]. I. The Court first addresses PCSSD's motion to withdraw supervision from three discrete areas of the PCSSD plan [doc.#2481] and LRSD's motion for partial unitary status [doc.#2483]. 'The PCSSD states that it has substantially complied with plan provisions regarding library media services, staff development and counseling services, while the LRSD states that it has substantially complied with LRSD plan provisions regarding Home Instructional Program for Preschool Youngsters ("HIPPY"), Rockefeller Early Childhood Program, Parkview Science Magnet Program, and Job Training Partnership Act/Summer Learning Program ("JTPA") . Both the PCSSD and the LRSD argue that the Court should withdraw supervision from these areas of the respective plans. The PCSSD's and LRSD's motions were both filed on August 23, 1995. On February 9, 1996, the parties entered into a Stipulation whereby it was agreed that the PCSSD, LRSD, and NLRSD should be released from court supervision and monitoring in certain discrete areas of the desegregation plans. The parties further stated that they are in the process of assessing what additional areas of the desegregation plans are ripe for release from Court supervision and monitoring and to identify what areas of the desegregation plans -2-remain deficient in terms of compliance. The additional hearings that were scheduled to address the motions to withdraw were cancelled at the parties' request as a result of the Stipulation. In light of the Stipulation and subsequent cancellation of the hearings, the Court finds that both the PCSSD's motion to withdraw [doc.#2481] and the LRSD's motion for partial unitary status [doc.#2483] have both been superseded by the Stipulation. Accordingly, these motions are denied as moot. II. On August 31, 1995, Joshua filed a motion to enjoin the LRSD from entering into a service contract without following bidding procedures, requests for information and without prior involvement of the Joshua Intervenors [doc.#2506]. In its motion Joshua argues that (1) the LRSD had not discussed the proposed management services contract with the Joshua Intervenors, (2) the proposed management contract has potential adverse racial effect and impact, (3) the proposed management contract has not been let for bids and is not a part of the program. research and evaluation instrument for the next five years, (4) the proposed management contract has potential adverse monetary effects upon financial resources of the district and has the potential for adversely affecting the ability of the school district to meet its a desegregation obligations, and (5) the proposed management contract was not negotiated at arms' length and was designed to provide special favor to some unknown person in the school district. -3-The Court held a hearing on Joshua's motion on Saturday, October 28, 1995, and again on Friday, December 8, 1995. At the hearing on December 8th, counsel for Joshua tendered into evidence a document entitled fl Settlement, fl which Joshua maintains constitutes a settlement offer by LRSD that was accepted by Joshua with respect to the ServiceMaster contract. Joshua claims that this constitutes an offer by LRSD to settle the matter with Joshua by having the Court enter an Order enjoining the LRSD from entering into the ServiceMaster agreement and terminating the district's liability pursuant to Paragraph 14.12 of the contract. The LRSD, however, contends that this document was not intended as an offer to settle, in that it is stamped "Draft II and is not signed by any party or the attorney for any party. On December 11, 1995, this Court issued an Order in which it ruled as follows: This Court declines to rule on whether this 'settlement' constitutes a binding agreement on the district or on whether the board of directors delegated Mr. Malone the authority to enter into it with Joshua. The Court finds that even if Mr. Malone had the authority and even if it was an offer to settle which Joshua accepted, settlement. public This policy 'settlement' prohibits this type of purports to create a situation in which this Court, by agreement of Joshua and LRSD, would by court order declare the agreement to be non-binding on the part of LRSD and would relieve LRSD of any liability. Indeed, Paragraph 14.12 of the ServiceMaster contract provides an LRSD should this Court terminate "escape clause" for or ServiceMaster agreement. modify the It provides that LRSD shall have no obligation to appeal decisions affecting the contract. Therefore, it implies that LRSD will in good faith abide by the terms of the contract and will not contract with Joshua or anyone else to procure a court order allowing it to escape liability. It would not be consistent with public policy to permit one party to a -4-contract to escape its obligations unilaterally without a similar provision for the other contracting party. This Court finds that ServiceMaster and LRSD did not intend that this clause would permit Little Rock to escape liability without a ruling on the merits. Therefore, the Court holds that this purported settlement cannot be enforced against ServiceMaster. Order, at 5-6 [doc.#2586]. On December 22, 1995, Joshua filed a motion for reconsideration of the Court's Order of December 11, 1995, and for completion of the hearing [doc.#2594]. Joshua states they have not completed their presentation in support of their initial motion to enjoin the LRSD from entering into a service contract, and they argue the Court has not ruled on the substantive grounds which it has set forth in its motion. The Court has considered the matter and remains convinced that its interpretation of the contract was correct and that it would not be consistent with public policy to permit one party to a contract to escape its obligations unilaterally without a similar provision for the other contracting party. See Order, at 6. Joshua cites Union Nat. Bank v. Federal Nat. Mortg. Ass'n, 860 F.2d 847 (Sth Cir. 1988) , in support of its motion. The Court finds Joshua's reliance on Union Nat. Bank to be misplaced, however, as that case involved a termination clause between the parties to the contract, see id. 860 F.2d at 849, while the case at Bar involves a purported settlement between a contracting party and a third party allowing the contracting party to escape its obligations unilaterally without a similar provision for the non-settling -5-party. Union Nat. Bank is thus distinguishable and provides no support for Joshua's motion for reconsideration. In any case, even if Joshua is correct that such a unilateral escape from contractual obligations would be permissible under Arkansas law, the parties in this case intended that the contract would be performed in good faith unless this Court issued an Order allowing the LRSD to escape liability pursuant to I 14,12 of the contract. The Court has not and will not at this time issue such an Order allowing the LRSD to escape liability under the contract. Accordingly, the Court denies that portion of Joshua's motion which asks for reconsideration of the Court's December 11, 1995, Order. With respect to that portion of Joshua's motion which asks for completion of the hearing, the Court finds that this aspect of the motion should be and hereby is denied as moot. The Court notes that the December Sth hearing was not completed because Joshua specifically requested that the matter be continued so that it could file an interlocutory appeal of the Court's Order. Tr. at 92, 97. Indeed, Joshua stated that such an appeal would "resolve a lot of matters." Tr. at 90. It was only after Joshua concluded that the Order was not appealable that Joshua now asks that the hearing be completed. However, because the Court's docket is full. the Court is unable to schedule the matter for a hearing in the immediate future. Accordingly, for administrative purposes, and because the Court in any case denies Joshua's motion for reconsideration, the Court concludes that Joshua's motion to enjoin the LRSD from entering into a service contract without following -6-bidding procedures, requests for information and without prior involvement of the Joshua Intervenors [doc.#2506] should be and hereby is denied without prejudice. Joshua may refile the motion to the extent they wish to pursue the matter after reviewing today's order. Should Joshua refile the motion, the Court will schedule the matter for a hearing. III. On September 14, 1995, the PCSSD filed a motion to clarify the PCSSD desegregation plan [doc.#2520]. PCSSD seeks to clarify those parts of the plan and programs that are or were calculated to further desegregate the southeast sector schools within the PCSSD, i.e., the Talented and Gifted Program within the southeast sector. the Fine Arts Program at Landmark, the Specialty Program at Bates Elementary, and Harris Elementary. The Court has considered the motion and finds that it should be and hereby is denied without prejudice. Joshua has not filed a response to the motion even though they would appear to be significantly affected by the matters contained therein. In any case. the status of this motion is questionable given the subsequent motions of PCSSD regarding potential school closings and new construction that would affect the schools in the southeast sector and elsewhere. Should PCSSD refile this motion, Joshua is expected to file a timely response stating their position on the matter. -7-IV. The LRSD moves for an Order dismissing this case without prejudice with respect to the LRSD, PCSSD, and NLRSD as of January 18, 1991, except to the extent the Court retains jurisdiction to address issues regarding implementation of the plans and to conduct proceedings to enforce the terms of the settlement or the terms of the plans [doc.#2573]. The Court finds that the motion for an order of dismissal should be and hereby is denied. Let there be no mistake that, with the entry of the settlement agreement, the claims involved in this ongoing litigation were dismissed. at least as a technical matter. The Court finds. however, that no useful purpose would be served by entering an order of dismissal at this time. The Court of Appeals has instructed this Court "to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion. to ensure compliance with the plans and the agreement. and otherwise to proceed as the law and the facts require." Little Rock School Dist. V. Pulaski County Special School District No. 1, 921 F.2d 1371, 1394 (Sth Cir. 1990) . The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects of its agreements (although some improvements have been made) . Therefore, the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and the agreement. Even had the LRSD acted in good faith throughout the years. the logistics and -8-complexity of this case are such that this Court's monitoring function would be impaired by entering this time. an order of dismissal at V. On October 25, 1995, Joshua filed a motion asking the Court to set forth in detail the continuing obligations of the LRSD under the desegregation plan with respect to faculty and staff desegregation [doc.#2544]. Joshua objects to certain staff and faculty assignment practices of the LRSD and contends that the parties have a material disagreement. Joshua seeks an Order which either defines or interprets the obligations of the LRSD with respect to faculty and staff. The Court has considered Joshua's motion and finds that it should be and hereby is denied without prejudice. The obligations of the LRSD regarding faculty and staff are clearly set forth in both the LRSD Plan and the Interdistrict Plan and need not be repeated here. Moreover, the parties have agreed in their Stipulation that they are in the process of assessing what additional areas of the desegregation plans are ripe for release from Court supervision and monitoring and to identify what areas of the desegregation plans remain deficient in terms of compliance. Should the parties be unable to reach agreement regarding faculty and staff desegregation, Joshua may refile its motion. -9-VI. On October 26, 1995, PCSSD filed a motion for an Order regarding portable buildings [doc.#2546]. In its motion, PCSSD asks for permission to begin construction on one permanent classroom at Jacksonville Elementary, four permanent classrooms at Bayou Meto, seven permanent classrooms at Landmark Elementary, and three permanent classrooms at Pine Forest Elementary. On January 29, 1996, PCSSD filed a subseguent motion regarding the replacement of portable buildings with permanent construction dated October 25, 1995 [doc.#2612]. This latter motion supplements and essentially supersedes the previous motion filed on October 26, 1995. In its supplemental motion, PCSSD seeks permission to begin construction on two permanent classrooms at Cato Elementary, two classrooms at Arnold Drive Elementary, four permanent classrooms at Bayou Meto, seven permanent classrooms at Landmark Elementary, and three permanent classrooms at Pine Forest Elementary. The Court has carefully considered the matter and concludes that PCSSD's request is consistent with the district's long-range plans for replacement of portable buildings. The construction will not increase the capacity of the aforementioned schools, with the exception of Pine Forest Elementary.* Accordingly, the motions for an Order regarding portable buildings are hereby granted. * On September 15, 1995, the Court approved a motion granting the PCSSD permission to add a kindergarten class to improve racial balance at Pine Forest Elementary. The district has represented to the Court that one of the permanent classrooms would reflect the additional capacity resulting from the new kindergarten class. -10-VII. In stun, the Court denies as moot PCSSD's motion to withdraw [doc.#2481], denies as moot LRSD's motion for partial unitary status [doc.#2483], denies that portion of Joshua's motion which asks for reconsideration of the Court's December 11, 199 5 Order [doc.#2594], denies as moot that portion of Joshua's motion which asks for completion of the hearing [doc.#2594], denies without prejudice Joshua's motion to enjoin the LRSD from entering into a service contract without following bidding procedures, requests for information and without prior involvement of the Joshua Intervenors [doc.#2506], denies without prejudice PCSSD's motion to clarify the PCSSD desegregation plan [doc.#2520], denies LRSD's motion for an Order of dismissal [doc.#2573], denies without prejudice Joshua's motion for an Order setting forth in detail the continuing obligations of the LRSD under the desegregation plan with respect to faculty and staff desegregation [doc.#2544], and grants PCSSD's motions for an Order regarding portable buildings [doc.#'s 2546 & 2612]. A IT IS SO ORDERED this ay of March 1996. mis DOCU.Mt.NT ENTERED CM DOCKET SHEET IN COMPUANCE WITH RULE 58 AND/OR 79(a) FRCP ON 3/ZZ/^^ BY -11- I F5LED Office Q{ JON 5 1996 Desegregation Monitor^ U.S. DISTRICT COURT EASTPR'' niSTDicT JBi' \NPAS 2. s JAMuS VV. iViCbUHA.HuK. CLERK THE UNITED STATES DISTRICT COUBp EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION DFP CLERK LITTLE ROCK SCHOOL DISTRICT, ET AL. PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. DEFENDANTS MRS. LORENE JOSHUA INTERVENORS KATHERINE W. KNIGHT, ET AL. INTERVENORS MOTION FOR EXTENSION OF TIME The Joshua Intervenors respectfully move the Court for an extension of time until August 1, 1996 in which to file its response to the Little Rock School District's motion to end federal court jurisdiction. For said order, Joshua states as follows: 1. Due to undersigned counsel's schedule, additional time is needed in which to review the document that has been submitted by the LRSD regarding said motion. This document is approximately 143 pages excluding the motion and memorandum. 2. Counsel for the LRSD has been contacted concerning this motion and has no opposition to it. WHEREFORE, for the reasons set forth above, Joshua Intervenors pray for an order extending the time within which they must respond to the LRSD motion to and including August 1, 1996. Respectfully submitted.John W. Walker, P.A. 1723 Broadway Little Rock, AR (501)374-3758 72206 By:V J, n W. Walker - ##6644046 1 I CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing motion was sent via U.S. mail to all counsel of record on this 29th day of May, 1996. Office a IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT No. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL SERVICEMASTER MANAGEMENT SERVICES, A Limited Partnership ORDER US oisraicTCOURT EASTERN DISTRICT ARKANSAS MAR 2 7 1996 JAMES W. McpVHMACK, CLERK By:Aj 07 OHP CLERK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS The Court hereby approves the Stipulation for Order filed February 9, 1996 [doc.#2626], regarding areas in which the Mah 2^ (996 vs. respective parties can be released from court supervision and monitoring. IT IS SO ORDERED this ^7 day of March 1996. JUDGE rurS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP ON ___BY 4 2 6 4IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS MRS, LORENE JOSHUA, ET AL INTERVENORS KATHERINE KNIGHT, ET AL INTERVENORS LITTLE ROCK SCHOOL DISTRICT'S MOTION TO END FEDERAL COURT JURISDICTION For its Motion the Little Rock School District (LRSD) states: 1. LRSD entered a Settlement Agreement in 1989 in order to end this litigation and to end over three decades of federal court control of the district. LRSD agreed to implement the LRSD Desegregation Plan in the Interdistrict Desegregation Plan ("The Plans") for six (6) years in exchange for a full and final release of liability and an order dismissing this case with prejudice. 2. LRSD began implementation of the plans with the 1990-91 school year and the six year term of the Plans will expire at the end of the 1995-96 school year. 3. LRSD has implemented in good faith many desegregation plans for more than three decades. LRSD was a substantially unitary school district in 1982, but it nevertheless filed this interdistrict litigation in a good faith effort to maintain a biracial public school system in Little Rock. A recent and exhaustive audit of LRSD's desegregation obligations shows that LRSD is in substantial compliance with the plans.n 4. According to the terms of that settlement agreement, LRSD is now entitled to be released from federal court jurisdiction. WHEREFORE, for the reasons set forth above and in the accompanying brief, LRSD prays for an order pursuant to the terms of the 1989 settlement agreement which withdraws federal court jurisdiction of this case and dismisses this case with prejudice. Respectfully submitted. LITTLE ROCK SCHOOL DISTRICT Christopher Heller Robert S. Shafer John C. Fendley, Jr. FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Street Little Rock, AR 72201 (501) 376-2011 Attorneys for LRSD By Christopher Helli^i^ Bar No. 81083 2CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following by depositing copy of same in the United States mail on this 17th day of May, 1996: Mr. John Walker JOHN WALKER, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 3400 Capitol Towers Capitol & Broadway Streets Little Rock, AR 72201 Mr. Richard Roachell #15 Hickory Creek Drive Little Rock, AR 72212 Ms. Ann Brown Heritage West Bldg., Suite 510 201 East Markham Street Little Rock, AR 72201 Mr. Timothy G. Gauger Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Christopher Heller 3 FSCW U.S. DIS I aiCT COURT EAS CERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION MAY 5 C 1956 JAMES W. AteCORMACK. CLERK DEP CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. No. LR-C-82-866 PV-LkSKl COUNTY SPECIAL SCHOOL DISTRICT No. 1, ET AL MRS. LORENE JOSHUA, ET AL RECESVED DEFENDANTS INTERVENORS KATHERINE KNIGHT, ET AL JUN 3 1996 INTERVENORS SERVICEMASTER MANAGEMENT SERVICE^/fice Of Deseflreaation Monitorino A Limited Partnership INTERVENORS ORDER Without objection, the Joshua Intervenors are hereby given until and including August 1, 1996, in which to file a response to the Little Rock School District's motion to end federal court supervision. IT IS SO ORDERED this day of 1996. I 'ED
tAtes d)ISTRltT JUDGE 2^ THIS document entered on docket sheet in COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP ON BY 2 6 7 Sr. 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. 1, ET AL JUN 1 8 1996 DEFENDANTS MRS. LORENE JOSHUA, ET AL Srvenors KATHERINE KNIGHT, ET AL INTERVENORS MOTION TO EXTEND TIME For its motion, the Little Rock School District (LRSD) states: 1. LRSD filed a motion on May 17, 1996 seeking withdrawal of federal court supervision on the basis of its compliance with its desegregation plan. The Joshua Intervenors (Joshua) reguested and received an extension to and including August 1, 1996 in which to respond to LRSD's motion. 2. Joshua has now filed a motion alleging that LRSD has failed to adequately comply with its desegregation plan. Both motions will require this court to determine issues regarding LRSD's compliance with its desegregation plan. 3. For the same reasons Joshua requested and received additional time to respond to LRSD's motion. LRSD requires additional time to provide a complete and detailed response to the Joshua motion. Additionally, LRSD will be in a better position to properly respond to the Joshua motion once it has seen Joshua's response to the previously filed LRSD motion.WHEREFORE, for the reasons set forth above, LRSD requests an extension of the time within which it must respond to the "Motion of the Joshua Intervenors For Relief Concerning The Incentive Schools" to and including August 9, 1996. Respectfully submitted. LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE & CLARK 2000 First Commercial Bldg. 400 West Capitol Street Little Rock, AR 72201 (501) 376-2011 Christopher Hei Bar No. 81083 f 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing Motion To Extend Time has been served on the following by depositing copy of same in the United States mail on this 14th day of June, 1996: Mr. John Walker JOHN WALKER, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Sam Jones WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON & JONES, P.A. 3400 Capitol Towers Capitol & Broadway Streets Little Rock, AR 72201 Mr. Richard Roachell Roachell and Streett First Federal Plaza 401 West Capitol, Suite 504 Little Rock, AR 72201 Ms. Ann Brown HAND DELIVERED Desegregation Monitor Heritage West Bldg., Suite 510 201 East Markham Street Little Rock, AR 72201 Mr. Timothy G. Gauger Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Christopher Hei :r 3FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS AUG 0 1 1996 IN THE UNITED STATES DISTRICT COU^Tpg 77 McCORMACK, CLERK EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION By:__ de?. CLERK LITTLE ROCK SCHOOL DISTRICT, ET AL. PLAINTIFFS V. NO. LR-G-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. Received DEFENDANTS MRS. LORENE JOSHUA, ET AL. AUG 5 1996 INTERVENORS KATHERINE W. KNIGHT, ET AL. K3-'yo p Office of Desefifegafon Monitoring INTERVENORS Memorandum of the Joshua Intervenors Opposing the LRSD's Motion to End Federal Court Jurisdiction A. Introduction The LRSD seeks an order "which withdraws federal court jurisdiction of this case and dismisses this case with prejudice. Motion, 5\17\96, at 2. This motion rests on a series of baseless assertions and otherwise unsound premises. It should. therefore, be denied. More specifically, LRSD first contends that the district agreed to implement the provisions of the settlements for only six years, absent a demonstration by the Joshua Intervenors of a failure of the system to comply with a term (or terms) of the settlement agreements. Motion, at 1
Memorandum, 5\17\96, at 1, 9, 16-17. Then, reasoning that [t]he Tri-District Plan was essentially the [settlement] Plans modified to address the J constitutional infirmities identified by [Judge Woods], and that 1constitutional infirmities identified by [Judge Woods], and that "LRSD implemented the Tri-District Plan during the 1990-91 school year," LRSD further contends that this six year period ended at the end of the 1995-96 school year. Motion, at 1
Mem., at 10-12. Lastly, LRSD argues that it has "substantially [complied]" with the settlement provisions. This assertion is based on what is termed an "exhaustive audit of LRSD's desegregation obligations" and a discussion of particular areas such as student enrollment and racial disparities in achievement. Motion, at 1
Mem., at 12- 13, 17-32. This memorandum addresses these and other premises of the LRSD submission. B. The Assertions About A Six-Year Plan The district asserts at page 9 of its memorandum that "[u]nder the terms of the Settlement Agreement, LRSD agreed to implement the plans for six years. 111 The problem with this assertion is shown by the fact that there is no citation to any provision of the Settlement Agreement. Nor is there a citation in the memorandum, at any point, to a provision of any of the settlement documents limiting implementation to six years (absent noncompliance) 1 LRSD refers to the "Settlement Agreement" of March 1989, as revised on September 28, 1989. See Mem., at 9. 2 The Settlement Agreement includes payment schedules and related criteria, applicable to LRSD, and covering various periods of time with various termination dates. These are (i) 1989-90 through 1998-99 (to LRSD) (at 15)
(ii) 1990-91 through 1995-96 (to LRSD) (at 16)
(iii) December 31, 2000 (period through which LRSD may show that composite test scores of black 2LRSD asserts that at the hearing on May 13, 1996, this court "acknowledged that the Plans were to be implemented for a period of six years." Mem., at 14. This assertion, as shown by the transcript, is erroneous. Indeed, the court, after alluding to provisions referencing six years, welcomed motions to perfect the 3 decree. To be sure, the "Interdistrict Desegregation Plan" contains the following provision: "There shall be a limited number of incentive schools, for a period of at least six years ... (at 3)." However, this language appears in a paragraph titled "III. Incentive Schools" one of 19 separately numbered paragraphs, in an "Overview," each paragraph having a separate title. Id., at 2-6. In brief, the six-year provision refers to the incentive schools
it is not set forth as a general limitation on the duration of the entire plan. Moreover, intervenors' argument is consistent with the treatment of the six-year period by the Court of Appeals in its 1990 opinion considering the overall settlement. With respect to the LRSD plan, the court alludes to what it terms "the initial six-year period" only with reference pupils are 90 percent or more of scores of white pupils) (at 17) . See Tr., 5\13\96, at 6-7 (". The reason for this hearing is that we are now in the sixth year, depending on how you count it, of the settlement of this case. And there are several places in the Consent Decree that mentions six years, although there is nothing in the decree that says that after six years the Court shall review the settlement and its effectiveness. But I have chosen to do this. [] I've invited the parties to ask the Court to modify the decree in areas in which the parties believe it's not working or cannot work....") 3to the incentive schools. Lastly, the court states with regard to the case generally
"This does not mean that a court must automatically approve anything the parties set before it. In the present case, for example, any remedy will necessarily require some judicial supervision monitoring, at least for a long time" (emphasis added). Little Rock School District, supra. 921 F.2d at at 1383. LRSD's reliance on United States v. Overton. 834 F.2d 1171 (5th Cir. 1987) is unavailing. See Mem., at 14-15. There, as the opinion shows, the parties dealt explicitly with the duration of the overall decree, first by specifying a three-year period. absent objection, and then, in resolving objections, by specifying a set date, or, alternatively, the date of the completion of a construction project. Id., at 1173-74. Overton is thus distinguishable by reason of the differences in the terms of the settlement. The Court of Appeals' characterization in Overton of the alternative formulation as one which "left the decree open until certain other conditions were met, which were" (834 F.2d at 1174) is relevant here. This, we submit, parallels the situation in this case. The agreements deal with certain subject matter areas, such as student enrollment and disparitities in achievement
they set forth goals of the remedial process, such as targets for the racial make-up of various categories of schools and "the 4 Little Rock School District v. Pulaski County Special School District. 921 F.2d 1371, 1386 (8th Cir. 1990) (emphasis added). 4elimination of educational achievement disparities between black and white students the "certain conditions in Overton terms
and they describe manifold actions to be taken to achieve the goals. The focus here with regard to termination of jurisdiction is not on a particular date
it is on the adequate implementation of the agreed upon actions to attain the goals, 6 including any revisions adopted by the court, and the attainment of the goals (the "certain conditions) to the maximum extent 7 practicable. C. LRSD Has the Burden of Establishing Compliance with the Settlement Terms Turning to standards external to the settlements, LRSD contends that in the context of determining the duration of court 5 Interdistrict Desegregation Plan, at 4. 6 See Little Rock School District, supra. 921 F.2d at 1394 n. 8 and Order, July, 10, 1992 (adopting ODM recommendations). 7 The follow portion of the "Introduction set forth in the Interdistrict Desegregation Plan (at 1) is relevant
"The goals of school desegregation planning must be clearly focused and well understood. It is insufficient to establish as a single goal the physical movement of bodies and the rearrangement of boundary lines. An educational environment which encourages and provides academic and human growth for all students based upon their individual needs and talents must also be a goal of any adequate desegregation pain. [] The parties hereto seek to ensure that the schools and learning experiences throughout the school system are organized so that school practices, policies and procedures prevent unfair treatment or denial of opportunity for any child because of his or her racial, economic status or cultural identification. [] Immediately following this introduction, the parties have included an overview which sets forth the basic tenets and bases of compromise they consider essential to an interdistrict desegregation plan ...."[The aforementioned "Overview" addressing 19 topics follows the Introduction.] 5jurisdiction, the Joshua Intervenors have the burden of establishing noncompliance with the settlement agreements. Mem., at 16-17. The district's reliance on Hazen v. Reagan. 16 F.3d 921, 925 (Sth Cir.1994) is unavailing. That case, and the earlier Eighth Circuit case on which it relies, address a special situation
a party seeks an adjudication that its adversary's performance is so deficient that it constitutes civil contempt. A far more appropriate approach to fill the void left by a gap in the agreements, and one consistent with the overall 8 approach of the LRSD submission. is to rely upon the standards normally applicable when this particular issue regarding burden arises in school desegregation litigation. This approach also finds support in the fact that the Court of Appeals described this court's responsibilities and authority in monitoring the agreements in traditional, and even expansive, terms. E^g^., 921 F.2d at 1386, 1394 paras. 4, 8 ("and otherwise to proceed as the law and the facts require), 9. The general rule is that a school district has the burden of establishing the predicate for the termination of court jurisdiction in one or more areas of the case. Freeman v. Pitts. 118 L.Ed.2d 108, 137 (1992)
see also United States v. Fordice. 8 See Mem., at 17-32 (citing many federal court decisions addressing the duration of decrees in desegregation cases). 9 'The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation." 6120 L.Ed.2d 575, 599 (1992) (higher education).^ More generally, assignment of this burden to LRSD is consistent with the standards for allocation of the burden of proof set forth by the Supreme Court in Keves v. School District No. 1. 413 U.S. 189, 208-10 (1973). In Keves. a school desegregation case in which segregation had not been reguired or permitted by state law, the Court identified instances in which Denver school authorities had the burden of proof. For example, proof of intentionally segregative actions in a substantial part of the system was held to establish a prima facie case that actions having a segregative effect in other parts of the system were also motivated by race. See 413 U.S. at 208-09. 11 The Court explained the basis for this rule as follows: "This burden-shifting principle is not new or novel. There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, 'is merely a question of policy and fairness based on experience in the different situations.' 9 J. Wigmore, Evidence 2486, at 275 (3d Ed 1940)." See 413 U.S. at 209. The court then cited a variety of situations in which considerations of "policy and "Brown and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system. Brown II. 349 U.S. at 300.... II 11 "In that circumstance, it is both fair and reasonable to require that the school authorities bear the burden of showing that their actions as to other segregated schools within the system were not also motivated by segregative intent." See 413 U.S. at 209. 7fairness" had been held to support a requirement that school authorities explain actions or conditions. See 413 U.S. at 209- 10. Two considerations of "policy and fairness" warrant allocating to LRSD the burden of showing the requisite compliance with the terms of the settlement before the termination of the court's jurisdiction in one or more areas. First, the school district obviously has superior access to data and greater resources in terms of personnel. Second, both this court and ODM, the monitoring body which the Court of Appeals directed the court to establish, have repeatedly documented poor compliance by LRSD with the terms of the court-approved settlement. The court summarized its view in its Memorandum and Order of March 11, 1996.12 See also Joshua's Enclosure One to this memorandum (containing the court's statement of March 1993, as well as other statements by the court regarding LRSD's poor compliance). ODM's documentation of ongoing poor compliance regarding the incentive schools where the Court of Appeals stressed the need for scrupulous compliance (921 F.2d at 1386) was recently summarized in the "Motion of the Joshua Intervenors for Relief 12 "The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects of its agreement (although some improvements have been made). Therefore, the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and the agreement. Even had the LRSD acted in good faith throughout the years, the logistics and complexity of this case are such that this Court's monitoring function would be impaired by entering an order of dismissal at this time." At 8-9. 8Concerning the Incentive Schools (May 31, 1996), at paras. 2- 4. 13 In conclusion, LRSD should be required to demonstrate, in a meaningful manner, compliance with the court-approved settlement terms. D. LRSD Has Not Established that It Implemented the Settlement in 1990-91 LRSD's contention, tied to its "six years argument," that it should be credited with implementing the settlement in 1990-91, should be rejected.^* In the first place, the Court of Appeals did not direct approval of the settlement "[i]n general" and "also make certain other directions for the future of the case" (921 F.2d at 1376) until December 12, 1990, several months into the 1990-91 school year. Joshua Intervenors should be held to be entitled to a period of implementation during which all of the officials and agents of the LRSD were aware that the settlements had been approved by the courts. More significantly, LRSD relies basically on simply asserting that it implemented the Tri-District Plan in 1990-91. Mem., at 11-12. LRSD does note that the earlier plan included "six Incentive Schools" (Mem. at 11), and suggests, implicitly. that its "implementation" of the Plan included this feature. 13 The motion also relied on the Joshua Intervenors' own monitoring reports which were provided, upon their completion, to LRSD officials. Given our contention that the "six years argument" is baseless, this section of our memorandum sets forth an alternative position. 9However, Judge Henry Woods noted in an order of December 11, 1989 that LRSD's noncompliance regarding "virtually every educational component" which would justify the existence of all-black schools touched the "approved portions of [its] own plan for the proposed 'incentive Schools.'..." (at 16, footnote omitted)
and, as we have shown, ODM and the Joshua intervenors thereafter documented ongoing deficient compliance regarding the incentive schools. Surely such a skimpy showing would not support loping a year from the six year period even if this period had the significance asserted by LRSD. E. LRSD Has Not Established the Requisite Implementation of the Court-Approved Settlement LRSD contends that its internal audit and the analysis which it sets forth in its memorandum regarding particular areas of its operation demonstrate that it has substantially and in good faith complied with its desegregation obligations. These assertions are groundless. Preliminarily, Joshua Intervenors reiterate their reliance upon the statements by the court rearding the case generally, and ODM and Joshua findings regarding the incentive schools, one pivotal element of the approved settlement. Moreover, Joshua intervenor's "Motion...for the Implementation of recommendations of the Office of Desegregation Monitoring" (July 2, 1996) (at para. 7) identified scores of ODM recommendations predicated upon findings of LRSD's inadequate compliance in many areas. 10(1.) The LRSD Audit The LRSD audit^ is unpersuasive for many reasons. First. The audit relies heavily on "Primary Leaders" identifying the status of the implementation of obligations within their respective domains. At 6. It is only common sense that too many negative answers would jeopardize a leader's tenure in his\her position. Second. The audit relies on making a dot with a pencil on an "obligations scan sheet" (at 6) a technique not suitable for addressing more complex obligations, or obligations affecting multiple schools. Third. The description of the asserted steps to move beyond the "scan sheets" (at 11) is far too sketchy to permit an assessment of its reliability. Were the "committees" composed of "primary leaders" called upon to scratch each others' backs so to speak? There are no more detailed descriptions of how this process worked regarding some significant obligations, showing how much time was taken, by whom, what evidence was reviewed. etc. Fourth. The audit does not deal in depth with significant areas of the case by advancing evaluations conducted in a professionally sound manner, or affidavits. These areas could have been identified by reference to Court of Appeals' 15 See "Little Rock School District Position Paper on Desegregation Obligations," May 8, 1996, Exhibit 4 to the memorandum. 11opinions, 16 ODM reports pointing out compliance problems in particular areas, or the court's statement about poor compliance in March 1993. How can the audit be viewed as significant, if it does not reflect the LRSD's coming to grips with the many findings of noncompliance by the court's monitoring body, and attempting to document a basis for favoring LRSD's conclusions. Fifth. The audit does not discuss comprehensively the "Not Begun" category (at 14), to explain, for example, how its existence is consistent with the request that the court's jurisdiction be terminated in its entirety. Motion, at 2. In the end it must be said that the audit provides little to help decide in a reliable manner whether LRSD representatives "scrupulously and dilgently carry out the settlement plans and the settlement agreement (as relevant to LRSD)...." Little Rock School District, supra. 921 F.2d at 1394. (2.) The Particular Areas of the System's Operation The district elects to discusss for many pages "how LRSD compares to school districts [which] have already achieved unitary status or to the nation as a whole." Mem., at 17. There are at least two problems with this approach. LRSD is silent about the extent to which any of these systems were by court order or voluntary agreement subject to the full panoply of provisions to which the LRSD is subject. Secondly, LRSD cites a sentence from Freeman v. Pitts, supra. 118 L.Ed.2d at 124, 16 See Little Rock School District. 921 F.2d at 1386 (programs in the incentive schools)
Appeal of Little Rock School District. 949 F.2d 253, 256 (Sth Cir. 1991) (seven areas). 12regarding "a critical beginning point...." Mem., at 17. However, LRSD should also have cited the preceding sentence, which reads as follows: "Proper resolution of any desegregation case turns dn a careful assessment of ITS facts. Green. supra. 391 U.S. at 439...." Freeman, supra. 118 L.Ed.2d at 124 (emphasis added). The point is that in assessing whether a system has "eliminated [the vestiges of past discrimination] to the extent practicable",^ the focus is on what is practicable in view of the facts in that school district. Under the standards which Little Rock cites, the system is not entitled to be excused on the issue of student enrollment because fewer of its schools are outside the applicable guidelines for measuring compliance than was the case in Savannah, Georgia if it is feasible in Little Rock to achieve compliance as to all (or additional) schools, or meaningful implementation of plan provisions designed to achieve compliance has not been attempted. (a.) Student Assignments LRSD devotes seven pages to this topic without identifying the schools in the district which are outside the applicable guidelines, or discussing other opportunities to enhance desegregation. Mem., at 17-24. It does not identify any plan provisions applicable to such schools or discusss the degree of their implementation. In short, LRSD does not show that it has achieved as much as can practicably be achieved. Freeman v. Pitts, supra. 118 L.E.2d at 139, guoting Board of Education of Oklahoma Citv v.Dowell. 498 U.S. 237, 249-50 (1991). 13LRSD notes that it "has successfully recruited white students and desegregated Rockefeller Incentive School." Mem., at 24. It ignores, however, the fact that the exhibit cited with reference to Rockefeller (Exhibit 5), shows that the other four incentive schools had the following proportions of black students in 1995-96: Franklin (93%), Garland (92%), Mitchell (97%), Rightsell (96%). Our motion of May 31, 1996 concerning the incentive schools supported, by reference to deficiencies in implementation documented by ODM, the view that this segregation was "an entirely predictable result given the overall deficient implementation of the plan and the nature of the deficiencies .." See Joshua motion, at paras. (3.), (4.)(a.) through (f.). (o.). The district does not discuss whether efforts have been made to promote desegregative transfers from the area elementary schools with the highest proportions of black students to the area schools with the highest proportions of white pupils. Given the current state of implementation of provisions regarding the incentive schools, an area where the Court of Appeals noted expressly the need for strict compliance with the agreements, LRSD is not entitled to entry of the order sought regarding student enrollment, whatever the number of indices it cites. (b.) Faculty and Staff As with other areas, the district's presentation does not confront ODM's findings regarding racial make-up and other staffing issues in LRSD. This is not consistent with the model 14for monitoring identified by the Court of Appeals in 1990. In its report of September 15, 1995 addressing the issue of the composition of teaching staffs at the elementarylevel in the three systems, ODM's recommendations included the following provision (at 11): 4. The districts should examine the distribution of black and white teachers in each grade level category in order to improve student access to classroom teachers of both races. As we have noted in this report, staff racial balance is not simply a matter of the total number of black certified employees in a building. The idea of racial balance must also encompass the distribution of those individuals within that building. The staffing of classrooms at each grade level category should reflect a conscious effort to furnish students with the greatest possible probability of experiencing teachers of both races throughout their school years. This recommendation rested, in turn, on ODM findings that there were (at 10): few black teachers at the early childhood level in all three districts. The distribution of black teachers across grade levels at some individual schools caused concern. Some schools lacked a significant number of black teachers to provide most students opportunities to have them as classroom teachers. While other schools had a larger number of black teachers, most were usually concentrated at the intermediate level. This pattern of racial representation can preclude large numbers of students from access to a black classroom teacher for a number of years. Regarding LRSD, ODM noted that the teaching corps included the following proportions of black faculty by level in 1994-95
early childhood (27%), primary (33%), and intermediate (44%). At 31. ODM also raised issues regarding particular Little Rock 15schools. 18 The ODM report of May 10, 1996 detailed serious problems of staff turnover, both faculty and principals, at the incentive schools, a focal point of both the remedies and the courts. See ODM report, at 6-10. For example, of the 87 classroom teachers at the schools in 1995-96, 27 (31%) were new to these schools. although only five new classes had been added. At 6. ODM also questioned the assigning of five first-time principals to the incentive schools since 1990-91. At 9-10. ODM noted that the level of instability identified can not be squared with the 19 governing standards. At 6. Again, LRSD is silent on these issues raised by ODM. Also, 18 For example: Badgett (sharp disparity in the make-up of the staff at the different levels)
Baseline (sharp disparity in the make-up of the staff at the primary and intermediate levels)
Carver (same)
Chicot (no black teacher at early childhood level for three years)
Forest Park (same)
Franklin (early childhood and primary levels are heavily white, and intermediate level identifiably black
"staff remains predominantly white")
Jefferson (no black teacher at early childhood level for three years)
McDermott ("staff remained predominantly white")
Meadowcliff (no black teacher at the early childhood level for three years
black teachers concentrated at the intermediate level
"staff remains predominantly white")
Pulaski Heights (no black teacher at early childhood level for three years
sharp disparity in composition of teachers at the three levels)
Rightsell ("the staff has remained predominantly black")
Rockefeller (decreasing number of black teachers over three year period
only 3 of 27 teachers were black persons in 1994-95)
Terry ("staff remained predominantly white")
and Watson (no black teacher at early childhood level for three years
"staff has remained predominantly white"). 19 See also Morgan v. Kerrigan. 509 F.2d 580, 598 (1st Cir. 1974), cert den., 421 U.S. 963 (1975) (noting "a rate of faculty turnover at predominantly black schools far higher than than that at white schools" contributing to a denial of equal educational opportunity). 16while LRSD touts its inclusion of black persons in the governance of the system, It does not address the fact that seven of the eight elementary schools west of University Avenue have white principals. 20 We respectfully submit that it is these matters, and not the situation in Dallas, etc., which LRSD must address in this context. (c.) Racial Differences in Student Achievement The LRSD made an unambiguous commitment in 1989 and at later times, not 1954 (compare Mem., at 27) - to eliminate the "achievement disparity between black and white students on norm- referenced and criterion-referenced tests. 1.21 The superficial presentation made by LRSD on this "crucial" aspect of the settlements^ does not approach the showing required to warrant the termination of the court's jurisdiction. See Mem., at 27- 29. 23 20 These schools are Fulbright, Jefferson, McDermott, Otter Creek, Romine, Terry, and Williams. Brady does have an African American principal. Addressing such patterns is an important part of the task of eliminating forever the notion of a "disfavored race." Freeman. supra. 118 L.Ed.2d at 131. 21 See LRSD Desegregation Plan, April 29, 1992, at 1., para. B.
Interdistrict Desegregation Plan, April 29, 1992, at 4 (Part XII). 22 See Appeal of Little Rock School District, supra. 949 F.2d at 256 (Court of Appeals identifies "the agreed effort to eliminate achievement disparity between the races" as one of the "crucial" elements of the settlement as to which "no retreat should be approved").
Order, May 1, 1992, at 6 ("However, certain modifications the Court finds substantive and unsupported in light of two of the primary goals of the case, is.^, racial integration and student achievement.") 23 Assuming arguendo that there is room for lower courts to take a different view on the impact of desegregation than Brown. 17Consider a hypothetical school district seeking the termination of court jurisdiction over the issue of student enrollment despite the fact that it has not achieved the goals of its plan, and in the face of monitoring reports showing that it has neither complied with provisions of its plan, nor exhausted the posibility of modifications to better attain its objectives. It is obvious that this district's actions would not warrant a holding either that it had achieved maximum practicable desegregation, 24 or substantially complied with governing standards. LRSD's position on this issue is no better. The following are among the many factors\reasons further showing that LRSD's effort to end jurisdiction on this point must fail. First. The district's presentation is entirely devoid of a proposition which we doubt, particularly in this case, this record does not support the broad contentions advanced by LRSD. First. Doctors Walberg and Armor acknowledged that 52 social scientists had joined a statement filed with the Supreme Court, taking a more positive position, than the one taken by them, on the impact of degregation on achievement. See Tr. ____, ____, May 13, May 15, 1996. Second. Dr. Walberg agreed that he has at times expressed his view of the impact of desegregation on achievement as follows
sometimes it helps, and sometimes it hurts, and sometimes it doesn't do anything. Tr. , May 13, 1996. He has not studied whether these differences are due to differences in the quality of the implementation in the different instances. Id. Third. Dr. Orfield testified that Dr. Walberg has done no original research on the impact of desegregation, and that Dr. Armor has done little such research. Tr. , May 30, 1996. Dr. Orfield also testified about scholars who take a positive position regarding the impact of desegregation, including with regard to its role in providing a path into the mainstream of society. Id. 24 See Swann v. Charlotte Meklenburg Board of Educ.. 402 U.S. 1, 26 (1971)
Davis v. Board of School Commissioners of Mobile County. 402 U.S. 33, 37 (1971). 184 facts, except for Exhibit 12, which is not cited in the memorandum, and undermines one of the system's principal arguments. See discussion, infra. There is, for example, no data on racial disparities in achievement in 1990-91 and 1995-96, allowing some conclusion as to the relative size of the gap "then and now." There is no indication of any effort to determine whether some schools show greater progress in addressing the gap
or whether any such schools have been studied in depth to identify positive elements of their programs which could be replicated in other schools. There is no discussion of any effort to determine the impact of participation in early childhood programs. There is no evidence of any study to identify the specific areas of knowledge and skills which lead to the gap and the causes of these differences. There is no evidence of any effort to organize regular classroom instruction
extended day. week and year programs
or tutoring efforts to address the specifics of the achievement gap. There is no indication of any effort to comply with the promise regarding criterion referenced assessment .25 25 Such an effort could include: identification of a body of knowlege and skills which this district desires that all students master, an effort to insure that all students are exposed to instruction allowing them the opportunity to master this material, and assessment, of various foirms, determining students' mastery of this material. This differs from norm-referenced testing where a student's score is compared to the scores of the sample of students from throughout the country who were tested during the process of standardizing a test used throughout the nation. See also the testimony of Dr. Gary Orfield, Tr. 30, 1996 (need for broader forms of assessment
need for , May longitudinal data following students over a period of years). 19 Second. In its Order of May 1, 1992 addressing the parties' proposed amendments to the initial versions of the settlement, this court repeatedly considered the potential impact of actions with regard to improvement in the relative performances of black youth and reduction in the achievement gap. Order, at 10, 15, 16, 21-22, 23, 24, 30. The district ignores entirely this obvious starting point. Third. In Freeman, supra. cited by LRSD, the Supreme Court noted the finding of the district court that "black students at DCSS made greater gains on the Iowa Test of Basic Skills (ITBS) than white students...." 118 L.Ed.2d at 129. Dr. David Armor testified that some compensatory programs have a positive impact. although it is not huge. Tr. ___, May 14, 1996. Dr. Herbert Walberg's testimony about effective educational practices was more positive. Dr. Walberg testified on August 2, 1984 about a variety of practices shown to be effective. See Tr. 3901-07. He concluded
"Many of these other factors that I've been describing have effects that are from two to as much as five times larger than socioeconomic status so that these alterable factors that can be put into school programs have very large effects on black and white achievement" (Tr., at 3907). Dr. Walberg's testimony about effective practices did not differ on May 13, 1996. Tr. . Dr. Walberg also testified about his participation in a program at a Chicago elementary school serving in the main low income black youth which yielded "normal middle class progress" in achievement. Tr. ___, May 13, 1996. 20Fourth. The Joshua intervenors' motions of May 31, 1996 and July 2, 1996, concerning the incentive schools and ODM's recommendations, respectively, set forth citations to ODM findings of LRSD's inadequate compliance with many components of the plan designed to strengthen achievement The LRSD makes no effort to explain the compatibility of its motion with these findings (or those detailed in Joshua's monitoring reports) Fifth. Relying upon the testimony of Doctors Walberg and Armor and decisions by other courts, LRSD contends that racial disparity in achievement (and other areas) is wholly explained by "socioeconomic disparity." Mem., at 27-29. There are a number of reasons why the district's argument does not support the result sought, one reason flowing from the procedural posture of this case. The witnesses were invited by the court in the absence of a pending motion. The normal opportunity to explore an experts' testimony prior to a hearing by use of interrogatories, depositions, study of his\her writings, and, later, consultation with other experts was absent. This necessarily affected the scope of the examination by Joshua counsel. Moreover, there is no way to evaluate the quality of cross-examination and the affirmative presentations made on behalf of students and parents 26 See Motion, May 31, 1996, at para. 4
Motion, July 2, 1996, at para. 7. 27 Dr. Walberg and Dr. Gary Orfield testified about the inadequate implementation of the remedies at the incentive schools on May 13, 1996 and May 30, 1996, respectively. See Transcripts. 21in other cases cited by LRSD. Analysis of the only achievement data provided by LRSD raises another red flag. LRSD cites the doctors to the effect that "blacks and whites with similar socioeconomic status('SES') will perform similarly on measures of academic achievement, and blacks and whites with high SES will perform better than both blacks and whites with low SES" (Mem., at 28 n. 14). The data set forth in Exhibit 12 does not point in these directions. In all 44 instances shown on the charts, white youth not eligible for free or reduced priced lunch outperformed black youth in the same category. More importantly, in 34 of 44 instances, including 23 of 24 instances at grades 9 and 11, white students eligible for free and reduced price lunch outperfomned black youth not eligible for free or reduced priced lunch. On LRSD's terms, this data suggests something negative about LRSD's program for black youth. LRSD's presentation ignores the testimony at the hearing about the manner in which differences in socioeconomic status affect achievement. That is, much of the testimony concerned a statistical relationship (or "correlation") between certain SES indicators and achievement levels. Each witness recognized that there is a second issue
namely, do SES differences cause achievement differences and, if so, how. In our view of the testimony. Dr. Armor acknowledged that he formed the view that differences in the home, rather than school personnel treating students and parents of different backgrounds in a different 22manner, cause the achievement differences, before data about parent\child interactions in the home were available to him. Tr. ___, May 15, 1996. In addition, the testimony revealed that the doctors had each given skanty attention to the possibility that different treatment of students of different SES status within the school is the basis of any impact of SES differences on achievement. Tr. ___, May 13-15, 1996. Lastly, there is reason to question the consistency of Dr. Walberg's testimony. In 1984, as noted, he emphasized the importance of certain instructional techniques and their greater impact than SES status. In 1996, he touted the same educational practices. (d.) Racial Differences in the Special Education Program The LRSD's discussion of special education programs is incomplete and otherwise deficient. It provides therefore no basis for the teirmination of jurisdiction. The system's memorandum addresses the single topic of the make-up by race of students classified as educable mentally retarded. The LRSD Desegregation Plan of April 29, 1992 is far more comprehensive. It also addresses
specific targets for reducing the numbers of black students receiving services as 28 The doctors had limited if any familiarity with a book by Ray C. Rist reporting on his observations within classrooms of different treatment of students by teachers based upon socioeconomic status. See The Urban School
A Factory for Failure (MIT Press, 1977), see also Ray C. Rist, The Invisible Children
School Integration in American Society (Harvard University Press, 1978) (observations within a desegregated school). See also testimony of Dr. Orfield, May 30, 1996, Tr. schools to reinforce socioeconomic status). (tendency of 23educable mentally retarded, specific learning disabled, and speech impaired (id., at 112, 120-21)
the in-service training and performance of the staff (id., at 113)
^ "the effectiveness of special education programs (id.)
the employment of minority special education staff (id.)
the overrepresentation of black males in special education (id., at 113-14, 117-18)
and the use of interventions prior to referral for evaluation (id., at 113, 119) . The narrowly focused analysis which is set forth is inadequate. It ignores the question of the placement of black males in EMR programs. Moreover, the statement that LRSD's racial disparity is less than at the state and national levels (Mem., at 30) is wrong
it rests on an erroneous method for determining disparity. The percentages set forth on page 30 of the memorandum show, in effect, the number of students of each racial group, per 100 students of that group, classified as EMR. The way to determine the extent to which the placement rate of one group exceeds the rate for the another group is to divide the higher percentage by the smaller percentage. The products for different jurisdictions may then be compared. This analysis shows that the extent to which the EMR classification rate for black pupils exceeds that for white pupils is highest in the LRSD, as follows: LRSD (2.1 times), national (1.9 times), Arkansas (1.5 times). 29 For example: "A minimum of 80 percent of the District's staff will utilize strategies derived from the District's staff development program that will assist black males in improving academic and social skills. Id. 24 although LRSD does have smaller numbers of youth in this category. Lastly, the study of students classified as EMR in the LRSD (Exhibit 15) identifies a problem answered only in a conclusory manner. The study found a statistically significant difference in the adaptive behavior scores for black and white pupils placed in EMR classes. Exhibit 15, at 4. Of 110 black students, 28 had composite adaptive behavior scores of above 70
none of the 15 white students had such scores exceeding 70. Id. The sample studied did not include students "referred for possible MR services (but not ultimately identified as MR)...."Id., at 5. It was, therefore, not possible to determine whether white youth with adaptive behavior scores above 70 had been evaluated, but not classified as EMR. Federal standards, to which the district is subject by reason of the state's receipt of funds pursuant to the Individuals with Disabilities Education Act (20 U.S.C. 1412), mandate that to be classified as EMR a youth must exhibit both below average intelligence and adaptive behavior. 34 C.F.R. 300.___ (definitions). The standards, like the terms of the settlement, also forbid racial discrimination in the implementation of program standards. 20 U.S.C. 1412(5)(C). LRSD's submission does not rule out such discrimination. 30 The author of the study expressly noted this "[limitation"]. Id. 25(e.) Racial Disparities in Discipline The court-approved settlement contains in the Interdistrict Desegregation Plan the following provision relating to the matter of racial disparities in discipline rates (at 5). XIII. Programs and Activities There shall be a presumption that racial disparities in programs and activities in any school need not exist. Where such disparities do exist, they shall be identified, analyzed for cause and shared with the appropriate monitoiring authorities. A recommended course of action in remediation will then be implemented. Special attention shall be given to any imbalance in .. . expulsions and suspensions
... [See also id., at 25] In the face of this provision, to which LRSD agreed, and the relevant facts regarding discipline, the system has established no basis for the termination of jurisdiction regarding discipline. First. LRSD identifies a racial disparity in suspensions and expulsions within the district (Mem., at 31
Exhibit 17), but neither provides nor identifies any analysis of the cause(s) of this disparity. It ignores, similarly, the agreed upon requirement for a remedial plan. Second. LRSD asserts that "several measures have been used to assess the application of disciplinary sanctions among black and white students." Mem., at 31. The sole basis cited for reliance on this approach is one federal district court decision. No detail is provided as to how in that case, if at all, the designated approach was proven to be valid. This, we respectfully submit, is not an adequate basis for the court to terminate 26jurisdiction based, in substance, on LRSD's assertion that its level of discrimination in discipline is not as extreme as other jurisdictions. Third. A comparison based upon LRSD's discipline data for 1995-96 (Exhibit 17, at 1) of discipline rates per 100 black students enrolled and 100 white students enrolled shows that the discipline rates for black students exceeded those for white students by the following amounts for the three types of discipline identified
out-of-school suspension (2.9 times), long-term suspension (5.5 times, and expulsion (10.6 times) Fourth. LRSD's effort to escape the import of its discipline data by reference to its African American personnel is, at minimum, overbroad. See Castaneda v. Partida. 430 U.S. 482, 499- 501 (1977)
see also id, at 501-04 (concurring opinion of Marshall, J.). Conclusion For the reasons set forth in this memorandum, the motion is wholly without merit and should be denied. Respectfully submitted. Walker # 64046 ihn W. 46 John W. Walker, P. A. 1723 Broadway Little Rock, AR 72206 31 This analysis is done, for example, by: (i) dividing the number of suspensions of black students by the total black enrollment and multiplying this product by 100
(ii) performing the same exercise regarding white students
(iii) dividing the larger rate per 100 students enrolled (the product for black students) by the product for white students. 27501-374-3758 Bob Pressman # 405900 22 Locust Avenue Lexington, MA 02173 617-862-1955 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing memorandum and the enclosure were sent via United States mail to all counsel of record on this 1st day of August, 1996. 28 Che, Examples of Instances Where the Court Noted LRSD's Inadequate Compliance with the Settlement 1. Statement of Judge Susan Webber Wright to Little Rock School Board and Counsel, March 19, 1993 2. Excerpts from Transcript of Hearing, March 29, 1993 (at 13-24) 3. Excerpts from Transcript of Hearing, June 7, 1994 (at 5, 175-181) 4. Excerpts from Transcript of Hearing, June 29, 1994 (at 4, 54-79) 5. Memorandum and Order, March 11, 1996, at 1 [# 7], 8-9T STATEMENT OF JUDGE SUSAN WEBBER WRIGHT to Little Rock School Board and Counsel - March 19, 1993 An Order was issued directing the Little Rock School Board members to appear in Court this morning so that the Court may take this opportunity to explain this case and to explain the constraints placed upon your actions by the orders of the U. S. Circuit Court of Appeals for the Eighth Circuit. The Court does not believe that you understand those orders, or if you do understand them, you do not seek to comply. Hopefully, after this morning, you will have an understanding
but whether you do or not. you must comply. This Court has been too lenient with you. The Court has given you ample leeway and opportunity to move toward a unitary school system. Those days of Court leniency and the assumption by the Court of good faith on your part are over. This current litigation is in a larger sense the continuation of desegregation litigation in the Little Rock School District which began in the Spring of 1956. At one time that litigation was thought to have been brought to a successful conclusion and the Little Rock school system seemed to have entered a period of relative tranquility and complete self-management. However, in 1982, the current litigation was brought by the Board of Directors of the Little Rock School District, as plaintiff, against the North Little Rock School District and the Pulaski County Special School District. X The Little Rock School District essentially was seeking county-wide desegregation and the -1-reconstituting of school boundaries between Little Rock and the County School District. The complaining party, the Little Rock School District, won its case. It also won its case against the State of Arkansas, and in a settlement involving the three school districts and the State, the State was assessed over $129,000,000 as something in the nature of reparations for its alleged role in promoting continued segregation in Pulaski County. As a part of the settlement approved by the U. S. Court of Appeals for the Eighth Circuit, the school districts agreed to a program which, it was believed, would ultimately lead to a unitary. desegregated school system in Little Rock, North Little Rock, and Pulaski County. This settlement was essentially the product of the Little Rock School District, the victor in this litigation, and it was approved by the Court of Appeals at the behest and active encouragement of the Little Rock School District. Now, it must be put into effect by the District Court. This Court settlement which you and your lawyers agreed to put in place is a costly settlement. The magnet school aspect of it, which seems to be an enormous success. is not nearly as expensive as the incentive schools. which. with one exception, presently appear to be failures as far as desegregation is concerned. In addition to the structure of this system. there are innumerable other aspects of your settlement agreement. which you were instrumental in having approved, which are very costly. Since the time of victory by the Little Rock School District in this case, when the Court of Appeals granted almost every facet -2-of relief requested by Little Rock, the Little Rock School District has shown a tendency to drag its feet and act as if it had lost, rather than won, the litigation which it instituted. The Little Rock School District and the other school districts are in Court because the Little Rock School district won its case and won the relief it requested. Yet the major complainer, the chief whiner, the number one barrier to a legitimate declaration of a unitary desegregated school system is the victorious complaining party, the Little Rock School District. The biblical reference, in a different context. is to the effect that if you ask, you will receive. Well, you asked, you got it, and it is the basic job of this Court to see that you receive it in full measure. To help this Court and to assist you in obtaining the relief that you sought and that has been approved for you as you requested, there has been created and approved by the Court of Appeals the Office of the Desegregation Monitoring. That office. as created, has been sufficient as currently staffed until recently when it became increasingly apparent that the Little Rock School District could not or would not develop a budget sufficient to identify the expenditure of desegregation funds. It is unclear to the Court and would be unclear to anyone how funds are being allocated to achieve the desegregation goals sought by the LRSD and approved by the Eighth Circuit. This Court has brought home this deficiency to the administration and attorneys of the LRSD on a number of occasions and has received only unfulfilled promises and requests to give you time. These deficiencies were brought to your -3-attention in the 1990 Curriculum Audit Report and in the Court's order of January 21, 1992 . It was discussed again in a budget hearing in August 1992. You have had time. Because you have evidently failed to understand this concern, the Court directed that you appear here today. The Court, either today or in the next few days, will appoint a budget officer to be paid by the Little Rock School District, who will be a part of the Office of Desegregation Monitoring and who will operate under the direction of Ann Brown. Now, there are some questions that you and others raise from time to time. My list is not exhaustive by any means. but it contains some rather common questions that are raised or falsely asserted as fact. Here are some of the leading ones. and here are the answers: 1. Why can't we have neighborhood schools? That is a perfectly sound question to be put forward by someone who does not know anything about law. The fact is, there are many neighborhood schools. Because the settlement plans foster voluntary movement to facilitate desegregation, there are other types of schools too. A such as magnets, interdistrict schools. and incentive schools. Many features of the desegregation plan are designed to give parents a choice in where their children attend school. However, because the order of the Court of Appeals requires racial balance in the schools. it is not always possible to have neighborhood schools and meet the requirements that have been imposed. That is why busing - which originated as device to bring distant or -4- aI rural children to the closest public school is employed as a device to disperse black children to predominantly white areas and white children to predominantly black areas. Racial barriers imposed by law in housing are unconstitutional
but for socio- economic reasons, there is racial segregation in living patterns here. Extensive and expensive busing of school children to achieve racial balance is the only answer. Until the U. S. Supreme Court changes the law or until the Court of Appeals alters its orders, busing will remain a requirement that cannot be avoided. 2. Why can't we have a revised desegregation plan focusingon high Quality education and student achievement? The Court is very sympathetic toward that goal and reminds you that the ultimate goal of desegregation is high quality. equitable education for all children. However , that is not all that you agreed to do in your settlement agreement, which you were successful in having the Court of Appeals approve. And so this Court, which in this respect acts as much in an administrative capacity as in a judicial capacity, is directed to carry out your expensive, approved plan. That plan of yours does focus on high quality education, but it also provides large sums of money for items that are not necessarily part of a basic or core curriculum. It was your plan that you agreed to
you got it approved by the Court of Appeals
and I must enforce it. T.et me make this clear: while the District Court has some latitude in modifying the plan, the Court of Appeals has. identified elements of the plan which it deems essential_andwhich under present . are not within the prerogative of this Couct: pC circumstances -5-I 3 . A budget officer to assist the School Di,stir).qt Xs lUst a "make work II situation. No, it is not
that is patently false. The Court cannot determine how you are spending your money to achieve desegregation. Your administrators do not know. Your lawyers do not know. And you do not know. would put it in receivership. If the LRSD were a corporation, I By the way, do not think that I have not considered that with regard to the LRSD. Finally, I wish to close these remarks with some more words directed to the School Board. You are in the position of trustees for the school patrons. Until you begin to comply with the orders of this Court and the Court of Appeals, you are not carrying out your trust in an acceptable manner. I have never seen. heard or read of a case in which the victors conducted themselves like the vanquished -- until now. If we have to have two full hearings a month, in which Board members are required to be present. then we will do so. We will do everything that is required to see that you take the medicine to achieve the cure that you asked the Federal Courts to give you. Following is a reminder of some of the provisions of the Plan or Court orders that you have yet to fulfill. Board Responsibilities section of the 1992 Directors has committed to 1992 According to the introductory desegregation plan, the LRSD Board of them: nn nnals. but has SO far not fulfill to the following goals, but has so black and white achievement disparity between students on norm-referenced and criterion referenced tests. Eliminating -referenced and criterion Promoting positive public reaction to desegregation. -6-I Effectively using to meet the interdistrict and intradistrict recruitment M * >* all strategies to meet the desegregation requirements schools and to avoid resegregation. in under the title II Leadership H on pages 2-3 of the 1992 plan. strong leadership in the following areas: delineating the district's desegregation clearly staff and the community. mission to the Utilizing the desegregation mission as a policies and setting expectations a guide for developing for the superintendent to implement those policies. Adopting a budget that will provide an effective, desegregated school system. the resources necessary for consistent with district f buildings, staff, materials. decisions -J budgetary desegregation policies in terms o Making and equipment. annual self-evaluation Conducting an -- quality desegregated education. of their commitment to a Incentive Schools kindergarten and four-year- seats for white students and to sustained, and vigorous recruitment to attract (Plan page 140
May 1992 Order, page 28) The district has failed to reserve old program seats for white students documented, sustained, and vigorous recru to those students. Program specialists have not been - ' (May 1992 order, page 41) incentive schools. A staffing needs analyzed, and used as 1992 order, page 41) hired and placed at all administered, assessment has been the basis for staffing decisions. not fMay Themes have not been each incentive school. incorporated into the core (May 1992 order, page 42) curriculum at has been Little significant progress .... the inront-ive schools, with the exception incentive schools, made toward desegregating of Rockefeller. (1992 plan, page 149) There is a implement all plan 215-217) and failure to coordinated recruitment cooroina plan, pages lack of ----- . recruitment activities. The Parent Council has not begun to monitor or report on all -7-. f / / activities related to the incentive school program. (1992 plan, page 151) Equity Issues The district has failed to show s in ignifleant progress -- black and white reducing the < (1992 plan, page students. 26) or,+- Hisoaritv between biacK anu page l?I98/sett2eent Agreement, page dlrdplS? a? a ^a"e XrPPora^Ste Student population. ( students at a rate males) to be to their percentage of continue the (1992 plan, pages 28, 33-34) The district has overrepresentation of black failed to effectively i
students (particularly to address the black males) in special education. (1992 plan, page 111) Recruitment not developed a The district has to the ODM Incentive LRSD Marketing Plan. pursuant and the J a strategic School Recommendations recruitment plan (page 4) r-+-QTn -fTTst during recruitment tracking sy , construction, has 1991 hearing on LRSD senoox A implemented. Additional Items from the May 1992 order the March not been A plan has not n2dsf"w^hS^orMagnet activities designed to address tn ---- school attendance zone students. (May 1992 order, page 38) -8-IN THE UNITED STATES DISTRICT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION JAMES IV. 1994 LITTLE ROCK SCHOOL DISTRICT, **COflMACK.cUfl
f vs. Plaintiff, * * * / * * No. ClOW LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT Monday, March 29, 199>f Little Rock, Arkansas Defendant. * 9:30 A.M. LITTLE ROCK SCHOOL DISTRICT REZONING HEARING BEFORE THE HONORABLE SUSAN WEBBER WRIGHT, United States District Judge. APPEABANCE?
On Behalf of the Plaintiff: CHRISTOPHER J. HELLER CLAY FINDLEY Friday, Eldredge & Clark 2000 First Commercial Building Little Rock, Arkansas 72201 On Behalf of the Joshua Intervenors: JOHN W. WALKER John W. Walker, P.A. 1723 South Broadway Little Rock, Arkansas 72206 Proceedings Reported by Machine Shorthand. LOIS M. LAMBERT United States Court Reporter Little Rock, Arkansas (Pages 1-25)On Behalf of the Knight Intervenors: SHARON C. STREETT Attorney at Law 401 West Capitol Little Rock, Arkansas 72201 On Behalf of Pulaski County Board of Education: LARRY VAUGHT Attorney at Law 201 South Broadway Little Rock, Arkansas 722011 13 respond to Mr. Walker's objection, which I did on the 5th of 2 March. 3 THE COURT: So let's direct that and Mary Ann, you 4 can prepare the order that the Court denies the defendant Little 5 Rock School District's motion to dismiss. 6 And, Mr. Vaught, did you join in that motion 10 11 12 13 14 15 MR. VAUGHT: THE COURT
Yes, I did, your Honor. We deny the motion to dismiss and direct that an answer be filed, but the answer's going to have to be filed immediately because this matter will be heard April 13. Tuesday, April 13 at nine o'clock. And I believe that you can tell, Mr. Walker, from the pleadings that have been filed what the answer is. MR. WALKER
THE COURT: Yes. We understand they are denied. But you're just saying that, you know, 7 8 9 16 just to clean up the record we can do it. 17 MR. WALKER: Yes, ma'am. 18 THE COURT: And that's agreeable with the Court. 19 MR. WALKER: Thank you, your Honor. 20 MR. VAUGHT: Thank you. 21 MR. HELLER: Did you say nine o'clock, your Honor? 22 THE COURT: Yes. It's going to go all day. Let's 23 just try to be here at nine. 24 MR. WALKER: All right. 25 THE COURT: I have some other matters. You-all can1 2 3 4 5 6 7 8 14 sit down and pull out your calendars. And I do hope you can work out this among yourselves amicably. But if you cannot, of course, it's my job to make a ruling with respect to the Voting Rights Act. To continue the issue of the effect of the '92-93 budget cuts in the Little Rock School District, we're going to continue that on Monday, April 19 at 9:30. Is that agreeable? Is that right, Mary Ann 10 11 12 13 THE CLERK: THE COURT: THE CLERK: THE COURT: Yes. that we're going to do that? Yes, ma'am. I had set, as you know, a hearing on the Rose City closing on Tuesday, April 20th. And, Mr. Walker, 9 14 we're not going to have a hearing on that. 15 MR. WALKER: Your Honor, I've I've just gotten 16 your order and I I think the way you approached that is the 17 way we would have expected you to. It's it's more or less to 18 let the Court what we want to do is let the Court know of our 19 concern. 20 THE COURT: I think I've addressed most of your 21 concerns. 22 23 MR. WALKER: THE COURT: You did. Even though we're not here today to talk 24 about that, what worries the Court in this instance, not only
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