{"response":{"docs":[{"id":"bcas_bcmss0837_1756","title":"Includes Pulaski County Special School District (PCSSD) reply to all responses regarding its fourth motion to enforce settlement agreement, District Court motion for stay of judgment and order made pursuant to Rule 62 of the Federal Rules of Civil Procedure and Rule 8.A of the Eighth Circuit Rules of Appellate Practice.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. District Court (Arkansas: Eastern District)"],"dc_date":["2003-08-12/2003-08-29"],"dcterms_description":null,"dc_format":["application/pdf"],"dcterms_identifier":null,"dcterms_language":["eng"],"dcterms_publisher":["Little Rock, Ark. : Butler Center for Arkansas Studies. Central Arkansas Library System"],"dc_relation":null,"dc_right":["http://rightsstatements.org/vocab/InC-EDU/1.0/"],"dcterms_is_part_of":["Office of Desegregation Monitoring records (BC.MSS.08.37)","History of Segregation and Integration of Arkansas's Educational System"],"dcterms_subject":["Little Rock (Ark.)--History--21st Century","Education--Arkansas","Pulaski County Special School District","School districts","Arkansas. Department of Education","Project management","School integration"],"dcterms_title":["Includes Pulaski County Special School District (PCSSD) reply to all responses regarding its fourth motion to enforce settlement agreement, District Court motion for stay of judgment and order made pursuant to Rule 62 of the Federal Rules of Civil Procedure and Rule 8.A of the Eighth Circuit Rules of Appellate Practice."],"dcterms_type":["Text"],"dcterms_provenance":["Butler Center for Arkansas Studies"],"edm_is_shown_by":null,"edm_is_shown_at":["http://arstudies.contentdm.oclc.org/cdm/ref/collection/bcmss0837/id/1756"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":["Available for use in research, teaching, and private study. Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["158 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eDistrict Court, letter order; District Court, memorandum; District Court, order; District Court, Pulaski County Special School District (PCSSD) consolidated brief in support of its reply to all responses to its fourth motion to enforce settlement agreement; District Court, two orders; District Court, corrected order; District Court, motion for stay of judgment and order made pursuant to Rule 62 of the Federal Rules of Civil Procedure and to Rule 8.A of the Eighth Circuit Rules of Apellate Practice; District Court, order; District Court, notice of appeal; Court of Appeals, emergency motion for espedited review and suspension of the rules pursuant to Rule 2 of the Federal Rules of Apellate Procedure and motion for emergency stay of judgment of the district court; District Court, Pulaski County Special School District (PCSSD) motion for enlargement of time to file fee petition; District Court, order; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool; District Court, motion for extension of time; District Court, order of transcripts pursuant to Rule 10 of the Federal Rules of Appellate Procedure; District Court, corporate disclosure statement; District Court, order This transcript was create using Optical Character Recognition (OCR) and may contain some errors. - BILL WILSON JUDGE To: Mr. Will Bond Bond \u0026amp; Chamberlin 602 West Main UNITED STATES DISTRICT COURT EASTERN DISTRIC'r OF ARKANSAS 800W. CAPITOL, ROOM 423 . LITTLE ROCK, ARKANSAS 72201--3325 (501) 604-5140 Facsimile (501) 804-5149 August 12, 2003 BYFAX Jacksonville, Arkansas 72075 LETTER-ORDER RE: Little Rock School District v. Pulaski County Special School District, et al., United States District Court, Eastern District of Arkansas, Western Division, Case No. 4:82CV00866 WRW/JTR- August 18th Hearing - Dear Mr. Bond: This is in response to your letter of yesterday, August 11 , 2003, regarding Mr. Fendley's conflicting schedule. I often reschedule hearing when they conflict with long standing vacation plans; and, on occasion, I have allowed a lav-,-yer to participate by telephone. In view of the crucial and immediate interests involved, I believe the hearing must be held as scheduled. Participation by telephone is a little unwieldy, and I do not think it would appropriate in this instance. cc: The Honorable Joe Thomas Ray Other counsel of record Original to Clerk Cordially, [;~~ Wm. R. Wilson, Jr. - ---- --- - - - - -------- - - ----- - - -- BILL WILSON JUDGE TO: All Counsel UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201-3325 (501) 804-5140 Facsimile (501) 604-5149 August 12, 2003 BYFAX MEMORANDUM RE: Knight lntervenors' Motion to Withdraw as Counsel and for Substitution of Counsel Pending is the Knight Intervenors' Motion to Withdraw as Counsel and for Substitution of Counsel. The Knight Intervenors assert that former cow1sel, Richard W. Roachell, has retired from the practice of law and requests to withdraw as their counsel. The Knight Intervenors have engaged Clayton Blackstock and Mark Burnette as counsel to replace Mr. Roachell. This issue will be addressed at the commencement of the hearing scheduled for 10:00 a.m., Monday, August 18, 2003. cc: The Honorable Joe Thomas Ray Original to Clerk Cordially, Y./~ IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DMSION LITTLE ROCK SCHOOL DISTRICT . V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER FILED U.S. DISTRICT COURT EASTERN 01sr.:i,cT ARKANSAS Al 1r, 1 3 2003 JAMES W. McCORMACK, CLERK By: ______. .....,,o\"\"ep\"\"'c\"\"'L.\"E\"'R,,.K..,. PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Pulaski County Special School District may have until 12:00 p.m., noon, Friday, August 1S, 2003, to file a reply to the responses to its Fourth Motion to Enforce Settlement Agreement and for Allied Relief (Doc. No. 3760). The reply should be short (no more than five pages), and citations of authority are more desired than prose. This Order provides an opportunity to reply and is not a mandate. IT IS SO ORDERED this 13 th day of August 2003. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 A~9(a) FRCF , ON ~-t ~-0;\\ B 3:\u0026gt;Q +:: ~ FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKAI'fSAS TO; Chris Heller Sam Jones Steve Jones Richard Roachell John Walker Timothy Gauger Mark Hagemeier Alm Marshall Mark Burnette Scott Smith Clay Fendley Will Bond Mike Wilson DATE: f. D. O'b Telephone: 501-604-5140 Fax Number: 501-604 5149 376-2147 376-9442 375-1027 374-4187 682-2591 682-2591 371-0100 375-1940 682-4249 907-9798 982-9414 982-9414 There are )--pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Office of Judge Wm. . Wilson, Jr. U.S. Dis1:rict Court 600 West Capitol, Room 423 Little Rock, Arkansas 72201 Matt Morgan, LRSD Law Clerk 501-604--5141 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL -DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 1 8 2003 OFFICE OF DESEGREGATION MONITOIHNG PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY and SUE ANN WHISKER MOV ANTS/INTERVENORS PCSSD CONSOLIDATED BRIEF IN SUPPORT OF ITS REPLY TO ALL RESPONSES TO ITS FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT I. Ripeness Hardship would be occasioned to the PCSSD because it is required to pay for the detachment election even though most of its patrons are denied the right to vote. The current proceedings do not interfere with an on-going administrative action because the State Board has already ordered the election. Simply stated, the legislature should not have passed a statute which substantially affects the ability of the PCSSD to desegregate and which violates Section II.J of the Settlement Agreement. All matters currently pending \"flow from\" passage of the statute. 440824-v1 II. The Settlement Agreement While it is fundamentally true that the equal protection arguments presented have an independent constitutional footing, at the same time, \"but for\" the State's enactment of an unconstitutional statute and the State Board's activation of that statute, these claims would have no reason to arise. The situation presented is much the same as confronted the Court of Appeals in 1990. After first finding that the District Court should have approved the desegregation plans, it then went on to note that: \"If the plans had been approved, the question of appointment of a metropolitan supervisor would never have arisen, and the tri-district plan would neither had been written nor submitted. The order appointing a metropolitan supervisor and commanding the parties to comply with the tri-district plan therefore necessarily falls along with the order declining to approve the settlement plan submitted by the parties. 921 F.2d 1371 at 1388. Here, had the legislation never been passed, the equal protection claims would have never had occasion to arise. Accordingly, in this literal sense, all of the issues presented now flow from the Settlement Agreement. ,. m. Equal Protection The PCSSD adopts that certain memorandum brief filed by the individual school board directors on August 8, 2003. The Bollen intervenors have simply missed the point with their argument that the board members have \"no constitutional right to vote on detachment.\" Bollen Mem. Brief at 4. The Bollen intervenors have no constitutional right to vote on detachment, either. What both parties have, however, is a constitutional right to vote on equal terms with those living in the 440824-v1 2 relevant political jurisdiction. See Board of County Commissioners of Shelby County v. Burson, 121 F.3d 244, 247 (6th Cir. 1997) When a citizen can show that he lives in the relevant jurisdiction, there is a \"strong presumption\" of entitlement to vote in its elections. Id. Indeed, \"exclusion of such a citizen from the franchise is subject to strict scrutiny, and will be only be upheld upon a showing of a compelling state interest.\" Id. ( citing Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969)). Thus the question before the Court focuses on what is the \"relevant political jurisdiction,\" and it is both irrational and arbitrary to award that label to any jurisdiction other than the preexisting entity charged with the responsibility in question. For purposes of the local government's role in education, there is currently only one jurisdiction--Pulaski County-and only one set of voters whose desires and interests are \"relevant\" to the education of public school students not enrolled in the Little Rock or North Little Rock districts--voters in areas comprising the PCSSD. The appropriate \"jurisdiction\" is the existing school district, for its citizens have a signal and profound interest in the outcome of any election that could alter its boundaries, tax base, student enrollment, and property.\" Furthermore, the state legislature has embraced a definition of the \"relevant political jurisdiction\" that is based on school districts. Having for generations endowed local school districts with the control, taxing authority, voting mechanisms and other indicia of \"the relevant political jurisdiction\" for public education purposes, the legislature cannot turn on its heels by enacting a law that treats a city, or a neighborhood, or state representative district, or historic zoning district as the \"relevant political jurisdiction\" entitled to make its own public education choices free from the desires of the larger and authentic \"relevant political jurisdiction\" already in place. 440824-v1 3 Compounding the equal protection dilemma is the fact that the State wrote the statute in a way that it currently applies only to the PCSSD and no other school district. While it is true that the Waldron School District meets the \"square mile test\", only the PCSSD meets the enrollment test of a district between 15,000 and 20,000 students. The statute applies neither to the largest school district in the State, the Little Rock School District, nor any of the next 100 1argest districts in terms of enrollment. Thus, those patrons residing in the PCSSD in areas other than those proposed for detachment are the only voters disenfranchised statewide. The detachment effort is the legal equivalent of a divorce. However, the party \"moving out\" does not get to control the process in a divorce. Rather, both parties are accorded due process and equal protection of the law. However, in the case of this attempted divorce, the State has seen fit to allow the party moving out to control the process. This is unfair, denies equal protection and should be declared unconstitutional. 440824-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 '- By __ ~~\"\"t\"------=-------:-::,~~------- pecial s 4 CERTIFICATE OF SERVICE On August 15, 2003, a copy of the foregoing was served via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 440824-v1 5 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Clayton Blackstock Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~end~ Chamberlin t)r, /:, Yd ,n C,,11f'ere,.'-~ (501 l 982-941 _ (j p. 2 / ,P',,1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, v. 1 . PULASKI COUNTY SPECIAL SCHOOL DISTR:ICT _NO. 1, et al., Defendants. No. 4:82CV00866WRW Monday, August 18, 2003 Little. Rock, Arkansas 10:06 a.m. MRS. LORENE JOSHUA, et al., Intervenors. KATHERINE KNIGHT, et al., Intervenors. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY, and SUE ANN WHISKER, . Movants/1:ntervenors TRANSCRIPT OF MOTIONS HEARING BEFORE THE HONORABLE WILLIAM R. WILSON, JR . , UNITED STATES DISTRICT JUDGE APPEARANCES: On Behalf of Little Rock School District: MR. CHRISTOPHER HELLER, Attorney at Law Friday, Eldredge \u0026amp; Clark Regioris Center, Suite 2000 400 West Capitol Avenue Little Rock ; Arkansas 72201-3493 On Behalf of Pulaski County Special School District : MR. M. SAMUEL JONES, II 1, . At t.orney at Law Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Bui1ding -200 West Capitol Avenue Little Rock, Arkansas 72201-3699 El aine Hinson, RMR, CRR, CCR United States Court Reporter [Continued] FILED EAsrMR~ g',f~1,g ~~sAS IN THE UNITED STATES DISTRICT COURT .Allr, l S 200l EASTERN DISTRICT OF ARKANSAS LITTLE ROCl( DMSION .::MES W. McCORMACK, CLERK D~PCLERI( LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. l, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER ORDER DEFENDANTS INTERVENORS INTERVENORS INTERVENORS For the reasons stated in the finding facts in conclusion with the law, given earlier today from the bench, aft~r hearing arguments of counsel, the Arkansas Dep:3rtmcnt of Education/State is directed to rescind the vote by which it approved an election in Jacksonville, Arkansas on September 16, 2003-whereby the citizens of that area would vote on the question of whether Jacksonville should be or would be a new district, separate in part fron1 the Pulaski County Special School District (which it is now a part). Additionally, the ADE/State is ordered to notify all affected county clerks and election officials that this rescission has taken place. The findings of fact and conclusions of law stated in court today are adopted and incorporated by reference in this order. Among other things, the facts and conclusions of law announ,~ed from the bench, the \"Bollen Intervenol'l!\"' Motion to Intervene (Doc. No. 3766) and the Motion to Intervene by the PCSSD Board Members in their individual capacities (Doc. No. 3769) are DENIED. IT IS SO ORDERED this 181h day of August, 2003 THIS 0OCUMENT ENTERED ON_ DOCKET SHEET IN COMPLIANCt: WITH RULi= 513 AND~79(a) FRCP ON 8-l t-o~. BY S+l q d FILED U.S. DISTRICT COURT EA.STERN DISTRICT ARl(ANSAS IN THE UNITED STATES DISTRICT COURT Af Jr, t B EASTERN DISTRICT OF ARKANSAS 2003 LITTLE ROCK DMSION JA:-4ES W. McCORMACK, CLERK By. ______ --=,_- oeP Cl..eRI( LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4:82CV00866 WRW/.TJ'R PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER DEFENDANTS INTERVENORS INTERVENORS Pending is the Knight Intervenors' Motion to Withdraw as Counsel and for Substitution of Counsel (Doc. No. 3783). The Knight Intervenors assert that former counsel, Richard W. Roachell, has retired :\u0026amp;-.osn the practice of law and requests to withdraw as their counsel. The Knight Intervenors have engaged Clayton Blackstock and Mark Burnette as counsel to replace Mr. Roachell. The Knight Intervenors' motion was addressed at a hearing this morning, August 18, 2003, and was not objected to by any parties in this case. Therefore, the Knight Intervenors may substitute counsel. IT IS so ORDERED this u day of August, 2003. ~~ I I ~4 THIS DOCUMENT ENTERED ON lJ~ DOCKET SHEET IN COMPLIANCE UNITED STATES DISTRICT JUDGE \\NITH RULE 58 ANOlQ_~9{aj FRCF oN re/ t (J{o 3 av~ ~,.,,;o - - ----- ------ - -- - IN THE UNITED STATES DISTRICT COURT Al ltt I 9 2003 FILED U.S. DISTRICT COUR\"T\" EASTE~N OISfRICT ARKA.NSAS EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION ~~;MES W. McCORMACK, CLERK DEP CLiaRK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER CORRECTED ORDER DEFENDANTS INTERVENORS INTERVENORS INTERVENORS For the reasons stated in the finding facts and conclusions of the law, given earlier today - from the bench, after hearing arguments of counsel, the Arkansas Department of Education/ State Board of Education is directed to rescind the vote and order by which it approved an election in Jacksonville, Arkansas on September 16, 2003-whereby the citizens ,)fthat area would vote on the question of whether Jacksonville should be or would be a new distzict, separate and apart from the Pulaski County Special School District (of which it is now a part). Additionally, the ADE/State Board of Education is ordered to notify all affected county clerks and election officials that this rescission has taken place. The findings of fact and conclusions of law stated in court today are adopted and incorporated by reference in this order. Among other things, the findings of facts and conclusions of law announced from the bench, the \"Bollen Intervenors\"' Motion to Intervene (Doc. No. 3766) and the Motion to Intervene by the PCSSD Board Members in their individual capacitks (Doc. No. 3769) are DENIED. IT IS SO ORDERED this l 9c1, day of August, 2003, nunc pro tune as of August 18'\\ 2003 . THIS DOCUMENT ENTERED ON OOCKEi SHEET IN COMPLIANCE W!Tli.RULE 58 AND/~ ~p ON ~- l 'i-0~ BY'-2-~=-~- u/WI? UltP ==- UNITED STA TES DISTRICT JUDGE TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS Chris Heller Sam Jones Steve Jones John Walker Timothy Gauger Mark Hagemeier Ann Marshall Mark Burnette Clay Fendley Will Bond Mike Wilson Telephone: 501-604-5140 Fax Number: 501-604 5149 376-2147 376-9442 375-1027 374-4187 682-2591 682-2591 371-0100 375-1940 907-9798 982-9414 982-9414 DATE: \u0026lt;i' I~ o:\u0026gt; - There are \"3 pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Offiai'of Judge Wm. R. w U.S. District Court 600 West Capitol, Room Little Roel:, Arkansas 72201 Matt Morgan, LRSD Law Clerk 501-604-5141 --- - - - - - - ---- - - - - - - BOND \u0026amp; CHAMBERLIN TulAL LAWYERS 602 W. MAIN JACKSONVILLE, ARKANSAS 72076 l 982-9414 p.2 WILL BOND NEIL CHAMBERLIN August 19 , 2003 TELEPHONE: (501) 982-9411 FAX: (501) 982-9414 VIA FAX 3~6-9442 Sam Jones Wright, L~ndsey \u0026amp; Jennings, LLP Suite 2200 200 W. Capitol Ave. Little Rock, AR 72201-3699 RE: School Di strict Dear Sam: Attached is our Motion for Stay of Judgment. It is our understanding the judge is going to take this up in a 3:00 p.m. telephone conference. Wi th Warmest Regards, Wi ll Bond 'l'WB:tt cc: John Walker Via Fax@ 374-4186 Scott Smith Via Fax@ 682-4249 Christ opher Heller Via Fax@ 376-21 47 Mark Burnette Via Fax@ 375-94 10 St ephen Jones Via Fax@ 375-1027 Ann Marshall Via Fax@ 371-0lOC Ka r la Burnett Vi a Fax@ 340-8282 arpart choo.l\\\"\"\"' jone.aug. 1fl. 03 IN THE UNITED STA'l'ES . OIS'l'RICT COURT EASTERN DISTRICT OF ARDNSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR J?UI.ASll COUNTY SPECIAL SCHOOL .DISTRICT NO. 1, ET AL. MRS . LORENE JOSHUA , E'l' AL . KATHERINE KNIGHT, ET AL. GREG BOLI,.EN, JAMES BOLDEN, PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY ANO SUE ANN WHISKER INTERVENORS/MOVANTS MOTION FOR .STAY OF JUDGMENT AND ORDER MADE PURSUANT TO RULE 62 OF THE FEDERAL RULES OF CIVIL PROCEDURE AND TO RULE 8 . A : OF THE EIGB'l'B .C:IRCUIT ROLES OF APELLATE PRACTICE 1. The rules of the Eighth Circ~it require that the moving party request a stay of judgment from the District Court prio r to see king such relief from the Eighth Circui t Court. 2. Yesterday, this Court ente~ed an order in effect stopping an ' election that was to occ~r within the Northeast Pulaski County area on September 16, 2003. P~oposed Intervencrs/Mov~nts conterid that the Order was contrary to existing case law. Particularly, the Fifth Circuit has held that a District Court excee6ed its discretion when it enjoined the ability of a separate s~hool district to naintain its corporate existence and to pursue its organizational rights under state law that did not involve the independent operation p.3 of a desegrating school district. See Ross v. United States 583 F , 2 d 712 5th Cir . ( 1 9 7 8 ) . 3. Failure of this Court to stay its order and judgment until proposed Intervenors/Movants can seek relief from the Eighth Circuit would in essence prohibit an election taking place on September 16, 2003. This Court ordered the State Board of Education to rescind its order of election and to ~nform election officials of the fact that the order had been rescinded and that the election coulc ~ot go forward . . 4. There are certain ministerial acts that election officials must take to ensure that an electio~ could take place on September 16, 2003. Those acts include making absentee - ballots available, ensuring that certain publications are made in newspapers concerning the election, ensur~ng that election officials define which voters are allowed to vote in the detachment election and other duties. 5. As menticned, failure to st~y the order and judgment until relief can be sought from tha Eighth Circuit wo~ld in effect stop the September election. 6. Proposed Intervenors/Movants were denied intervention by this Court in the ace of case law which states that the threshold to intervention is minimal; they are being denied their right to vote pursuant to a statute passed by the duly elected representatives of the General Assembly of State of 2 p. .. - - ~-- . .. Arkansas; and they are being denied their right to organize a school district under state law by this Court. Failure to stay the Court's decision would prohibit an election from being held pursuant to what is a validly passed and enacted state statute. WHEREFORE, Intervenors/Movants request that the Court's order be stayed until relief can be sought frcm the Eighth Circuit Court of Appeals, and for all other just and equitable relief to which they may be entitled. Respectfully S~bmitted, BOND \u0026amp; CHAMBERtIN Trial Lawyers 602 w. Main Jacksonville, AR ~076 Telephone (501) 2 9081 Telefax (501) - 414 CERTIFICATE OF SERVICE i, Will Bond, do hereby certify that I have served a copy of the foregoing pleaoing by United States Mail, addressed to such attorney or party with ,:_~ficier.t prepaid postage to ensure first-class delivery this --f::l..L'-d.ay of August, 2003: Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings, . LLP 200 W. Capitol, Ste~ 2300 ~ittle Rock, AR 72201-3699 S::::ott Smit:i State Department of Education #4 Capito],. Mall Little Rock, AR 72201 Also Via f3x@ 376-9442 Also Via Fax@ 682-4249 3 p.5 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark, LLP 2000 Regions Center 400 W. Capitol Little Ro~k , AR 72201 Also Via Fax@ 376-2147 John W. Walker P.A. Also Via Fax @ 37 4-4186 1723 S. Broadway\" Little Rock, AR 72206 Mr. Mark 3urnette Also Via Fax@ 3 75-9410 Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. ~hird Street Lit tle Rock, AR Mr. Stephen Jones Jack, Lyon \u0026amp; Jones, P.A. 3400 TCBY Tower 425 West Capitol Avenue ~ittle Rock, AR .72201 Telephone (501)375-1122 Ann Marshall Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Ms. Karla Burnett Suite 400, 201 South Broadway Littl e Rock, AR 72201 By: 4 Al s o Via Fax@ 375-1027 Also Via Fax@ 371-0100 Also Via Neil Bar 93222 p.6 To: Ann Marshall Fax: 371-0100 Pharla= Ile: School District Attachments: Commentss BOND \u0026amp; CHAMBERLIN Trial Lawyers 602 West Main Street Jacksonville, AR 72076 Telephone (501) 982-9081 Telefa\u0026gt;\u0026lt; (501) 982-9414 Prom: Will Bond Pa ... Including Con,..._.:~ fJ Date: August 19, 2003 The lnfannltlon contained In thl9 fax transmltal ls conlldenttal attorney-client privilaged information and is intended 90ltly for the use of ttle lnclvldual or entity nmnecl H N1Clplent. If this message Is ,-Mid by aomeone other than the Intended niclplant, you .. JIR)hiblled from anv dl.-ninMion, distribution cir copying of tnla ccmmunlcatlon aimept to the addrasH. If thla communication ha bNn received by you in error, or you ani not aunt of itB intended dlltrl)utlon, plaaN notify the ~ced office at 1.a88-245-1!77. p. 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA. ET AL. KATHERINE KNIGHT. ET AL. GREG BOLLEN, JAMES BOLDEN. MARTHA WHATLEY AND SUE ANN WIDSKER ORDER AUG 19 2003 JAMES WM By:_ cCORMACK, CLERK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS Greg Bollen, James Bolden, Martha Whatley, and Sue Ann Whisker, \"intervenors\"/ Movants, filed a Motion for Stay of Judgment and Order Made Pursuallt to Rule 62 of the - Federal Rules of Civil Procedure and to Rule 8.A of the Eighth Circuit Rules of Appellate Practice (Doc. No. 3791). This motion is in response to :findings of facts, conclusions of law, and an Order of this Court (Doc. No. 3790) entered yesterday. Since the Movants' Request for Intervention was denied in yest,~rday's ruling, I have considerable doubt as to their standing to file the above-referenced motion-particularly since the Arkansas Department of Education/State Board of Education declin.ed to join the motion (although it did not specifically oppose the motion); but, be that~ it m.:iy, the motion is hereby denied. IT IS SO ORDERED this I 9m day of August, 2003. THJS DOCUMENT ENTERED ON DOCKET SHEET IN COMF\u0026gt;l.lANCE 0:'~!{~:i,~ A~~=- TO: DATE: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS Chris Heller Sam Jones Steve Jones John Walker Timothy Gauger Mark Hagemeier Ann Marshall Mark Burnette Clay Fendley Will Bond Mike Wilson ----- Telephone: 501-604-5140 Fax Number: 501-604 5149 376-2147 376-9442 375-1027 374-4187 682-2591 682-2591 371-0100 375-1940 907-9798 982-9414 982-9414 There are 2 pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: P1-t ,;::i::;-? 16-------- Office of Judge Wm. ~son, Jr. U.S. Distric:t Court 600 West Capitol, Room 423 Little Rock, Arkansas 72201 Matt Morgan, LRSD Law Clerk 501-604-5141 4 ' \\ FlLeo .! c: \"\" .... u.s o,sr ~ TERN D!slR1c;;_r couRT l~T ARKANSAs IN THE UNITED STATES DISTRICT COURT AUG 2 0 2D03 EASTERN DISTRICT OF ARKANSAS ~AyMEs w. McCORv11cK LITTLE ROCK DIVISION . . 1,..._ , CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4 :82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRI CT NO . 1 , ET AL . MRS . LORENE JOSHUA , ET AL. KATHERINE KNIGHT , ET AL . GREG BOLLEN , JAMES BOLDEN, DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY AND SUE ANN WHI SKER INTERVENORS/MOVANTS NOTICE OF APPEAL Proposed Intervenors/Movants hereby appeal the decisions made by the District Court in the above-referenced case on August 19 , 2003 with judgment being filed on August 19, 2003. This appeal is hereby taken to the Eighth Circuit Court of Appeals. The proposed Intervenors/Movants appeal the denial of their intervention and appeal the District Court ' s ultimate decision granting Pulaski County Special District ' s Motion to Enforce Settlement Agreement . Proposed Intervenors/Movants will be submitting a motion for expedited review and for emergency relief with the Eighth Circuit Court of Appeals . Respectful ly Submitted, BOND \u0026amp; CHAMBERLIN Trial Lawyers 602 W. Main Jacksonville, AR 72076 Telephone (501)982 - 9081 k. Bar #95245 CERTIFICATE OF SERVICE I , Will Bond, do hereby certify that I have served a copy of the foregoing pleading by United States Mail, addressed to such attorney or party with/,7':;i;ficient prepaid postage to ensure first-class delivery this -#1-'-day of August , 2003: Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings , LLP 200 W. Capitol, Ste. 2300 Little Rock, AR 72201-3699 Scott Smith State Department of Education #4 Capitol Mall Little Rock, AR 72201 Mr. Christopher Heller Friday , Eldredge \u0026amp; Clark, LLP 2000 Regions Center 400 W. Capitol Little Rock , AR 72201 Also Via Fax@ 376-9442 Also Via Fax@ 682-4249 Also Via Fax@ 376-2147 John W. Walker P.A . Also Via Fax@ 374-4186 1723 S . Broadway Little Rock , AR 72206 Mr. Mark Burnette Also Via Fax@ 375-1940 Mitchell , Blackstock , Barnes , Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock , AR Mr . Stephen Jones Jack , Lyon \u0026amp; Jones, P.A. 3400 TCBY Tower 425 West Capitol Avenue Little Rock , AR 72201 Telephone (501)375-1122 Also Via Fax@ 375-1027 2 Ann Marshall Also Via Fax@ 371-0100 Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Ms. Karla Burnett Suite 400, 201 South Broadway Little Rock, AR 72201 By: @ 340-8282 Wil AR Bar 95145 separate school district .pleadings . federal\\motion for appeal.aug.19.03 3 WILL BOND NEIL CHAMBERLIN PRESS BOND \u0026amp; CHAMBERLIN TRIAL L AWYERS 602 W. MAIN JACKSONVILLE, ARKANSAS 72076 August 20 , 2003 Michael~ . Gans , Clerk Eighth ircuit Court of Appeals . 24 . 32 Thomas F. Eagleton U.S. Courthouse 111 10th Street St Louis , MO 63101 14) 244 - 2400 RECEIVED AUG 2 1 2003 DESEGR OFFICE OF EG4fLQ!MdQN/1'(JMW8-9411 FAX (50\"1j~M\u0026gt;-9414 RE : Motion for Expedited Review and Stay o f Order of District Court Dear Mr . Gans : Enclosed along with this letter are a copy of our file marked Notice of Appeal , a certified copy of docket entries , and a copy of the order of the District Court from which we are appealing . Also enclosed are the original and five COQies of our Motion for Ex edited Review and Stay of: t-he... Di tr ict Gou_rt dB . If you could please file-mark these pleadings and return a file-marked copy to us in the self- addressed , stamped envelope enclosed , your help would be greatly appreciated. One of the exhibits to the motion is a transcript of the proceedings. As I mentioned to you on the telephone , the transcript was not to be completed until August 21 , 2003 . We intend to fax the transcript to you so that you will have it in the record. By copy of involved of our TWB : tt Enclosure ( s ) this letter , I am informing other counsel forwarding these documents to you . I\\ With(; 1 ]mes):_ Regards , ///,_~/ ~i J[d uvc \\ Michael E. Gans August 20 , 2003 Page Two cc: Greg Bollen Sam Jones Scott Smith Christopher Heller John W. Walker P.A . Mark Burnette Stephen Jones/ Ann Marshall Karla Burnett Tim Gauger f. , ?Jh j ~ ldt f+-~~ P c.J~scv,v,'lf.:. 5 1:il-+- UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR RECEIVED AUG 2 1 2003 OFFICE OF DESEGREGATION MONITOAJNG PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DEFENDANTS (APPELLEES) . DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. INTERVENORS KATHERINE KNIGHT, ET AL. INTERVENORS GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER INTERVENORS/MOV ANTS (APPELLANTS) EMERGENCY MOTION FOR EXPEDITED REVIEW AND SUSPENSION OF THE RULES PURSUANT TO RULE 2 OF THE FEDERAL RULES OF APPELLATE PROCEDURE AND MOTION FOR EMERGENCY STAY OF JUDGMENT OF THE DISTRICT COURT Come the proposed Intervenors/Movants (appellants), and for their request for expedited review of their appeal and for a stay of the District Court's Order state: 1. On August 20, 2003, proposed Intervenors/Movants, Greg Bollen, James Bolden, Martha Whatley, and Sue Ann Whisker, filed a Notice of Appeal in the above-referenced case. 2. The proposed Intervenors/Movants represented a group of individuals living and residing in approximately the northeast portion of Pulaski County, - Arkansas who sought to form a new school district by detachment pursuant to Ark. ' J IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. PCSSD MOTION FOR ENLARGEMENT ,. OF TIME TO FILE FEE PETITION The PCSSD for its motion, states: RE/~IYPi AUG 2 5 2003 ) OFFICE OF DESEGREGATION MONITORfNG PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. On August 18, 2003, this Court announced its decision from the Bench granting the PCSSD's motion to enforce Settlement Agreement and for allied relief. A final order was entered on August 19, 2003. 2. Since that time, the putative intervenors have begun the prosecution of a notice of appeal and have requested a stay from the Court of Appeals as well as expedited processing of their appeal. 3. The PCSSD believes that the Court of Appeals will deal with these issues on some kind of expedited basis and that it would promote judicial economy to await the Court of Appeals' ruling on a stay before presenting any motion for attorneys' fees and costs in this Court. 443086-v1 J 4. The PCSSD thus requests an enlargement of time until and including twenty (20) days after the Court of Appeals issues its ruling on the putative appellants' request for a stay before finalizing and filing any motion for attorneys' fees and costs. WHEREFORE, the PCSSD prays for an order of this Court enlarging its time until and including twenty (20) days after The United States Court of Appeals for the Eighth Circuit issues it ruling upon the pending stay request, and for all proper relief. 443086-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 2 CERTIFICATE OF SERVICE On August 22, 2003, a copy of the foregoing was served via U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 Mr. John W. Walker John.W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Ileller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, ArkanSas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 443086-v1 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Clayton Blackstock Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITUE ROCK DMSION LITTLE ROCK SCHOOL DISTRICT V. No. 4:8lCV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHA UEY AND SUE ANN WIIlSKER ORDER FILED U S DISTRICT COURT EASTE;RN DISTRICT ARKANSAS AUG 2 5 2003 JAMES W. McCORMACK, CLE By: CEP CL PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS Pending is PCCSb's Motion for Enlargement of Time to File :Fee Petition (Doc. No. 3797). If any party has an objection to this extension, that party, or parties, should file a response within three days of the date of this order. IT IS SO ORDERED this 25th day of August, 2003. THIS DOCUMENT ENTERED uN DOCKET SHEET lN COMPLIANCE WITH RULE 58 AN~ FRCf- ON R-~~ ...o~ BY Q..) 111 !!Lfl{;J~ ~ATESDISTRICTGE WM. R. WILSON, JR. . TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS Chris Heller Sam Jones Steve Jones John Walker Timothy Gauger Mark Hagemeier Ann Marshall Mark Burnette Clay Fendley Will Bond Mike Wilson Telephone: 501-604-5140 Fax Nwnber: 501-604 5149 376-2147 376-9442 375-1027 374-4187 682-2591 682-2591 371-0100 375-1940 907-9798 982-9414 982-9414 DATE: __\u0026lt;3 _Z_~_-_17_\"J - There are Z-pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: ~~?\"?-tr~ Office of Judge Wm. R. w n, Jr. U.S. District Court 600 West Capitol, R 423 Little Rock, Arkansas 72201 Matt Morgan, LRSD Law Clerk 501-604-5l41 Raymond Simon Director State Board of Education JoNell caldwell, Chair Utt/a Rock Shelby HIiiman, Vice Chair Carlisle Luke Gordy Van Buren Robert Hackler Mountain Home calvln King Marianna Randy Lawson IIJJJJ.fonvllle W.,Jane Rebick little Rock Diane Tatum Pine Bluff Jeanna Westmoreland Arkadelphia Arkansas Department of Education #4 Capitol Mall, LiJtle Rock, AR 72201-1071 August 28, 2003 501-682-4475 Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 htlp:/ larkedu.staJe.ar.us RECEIVED AUG 2 8 2003 OFFICE OF DESEGREGATION MONITOmN RE: Little Rock School District v. Pulaski County Special School District, et al. US. District Court No. 4:82-CV-866 Dear Gentlemen and Ms. Marshall: Per an agreement with the Attorney General's Office, I am filing the Arkansas Department of Education's Project Management Tool for the month of August 2003 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. ld:~ General Counsel Arkansas Department of Education SS:law cc: Mark Hagemeier ,, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of the ADE's Project Management Tool for August 2003. Rg::z~ Scott Smith, #92251 Attorney, Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 501-682-4227 CERTIFICATE OF SERVICE I, Scott Smith, certify that on Augu~ 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes Wagoner, Ivers \u0026amp; Sneddon P. 0 . Box 1510 Little Rock, AR 72203-1510 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 ~od~ ottSmith RECEIVED AUG 2c1 2003 OFFICE OF OESEGREGATIOH MONITORING Fl I s:: D --- ~-'= U.S. 01s\"rl:t1t'f COURT EASTERN DISTRICT ARKANSAS AUti 2 8 2003 JAMES W. McCORMACK, CLERK By_ --------,o=e=p-=c.,..,Le=R\"\"\"K IN THE UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT CASE NO. 4:82CV00866WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT :tvIB.S. LORENE JOSHUA, ET AL. KATHERINE KN1GHT, ET AL. MOTION FOR EXTENSION OF TIME PLAINTIFF DEFENDANTS INTER VENO RS INTER VENO RS Come now the Joshua Intervenors, by and through undersigned counsel, for their Motion - for Extension of Time to submit a fee petition regarding PCSSD's Motion to Enforce the Settlement Agreement, state: 1. The Joshua Intervenors believe their counsel is entitled to a fee award. 2. Counsel, therefore, requests that the court allow undersigned counsel the same time it allows counsel for PCS SD to file such motion and supporting documentation and brief 3. Counsel incorporates by reference the motion and supporting documentation of the PCSSD in this matter. WHEREFORE, the Joshua Intervenors pray that the Court enter an order granting Joshua's counsel such time that His Honor allows the PCSSD file its petition for fees, costs and other appropriate relief Respectfully submitted, John W. Walker Rickey Hicks John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (fax) I do hereby state that a copy of the forego 0 motion has been served all counsel of record on this 28th day of August, 2003. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL . GREG BOLLEN, JAMES BOLDEN, DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY AND SUE ANN WHISKER INTERVENORS/MOVANTS ORDER OF TRANSCRIPTS PURSUANT TO RULE 10 OF THE FEDERAL RULES OF APPELLATE PROCEDURE Appellants , Greg Bollen , James Bolden , Martha Whatley and - Sue Ann Whisker , have ordered from the court reporter a transcript of the entire proceeding which consists of one hearing and a telephone conference . Appellants have already made payment for the transcript . The entire transcript has been ordered . Respectfully Submitted , Bond \u0026amp; Chamberlin Trial Lawyers 602 West Main Street Jacksonville , AR 72076 Telephone (501) - 9081 Telefax (501) 8 - 414 By : W.1.l Bar 95145 CERTIFICATE OF SERVICE I , Will Bond , do hereby certify that I have served a copy of the foregoing pleading by United States Mail , addressed to such attorney or party wit~~ujfj'ficient prepaid postage to ensure first-class delivery this ~ay of August , 2003: v Mr . Sam Jones Wright , Lindsey \u0026amp; Jennings , LLP 200 W. Capitol , Ste . 2300 \"Little Rock , AR 72201 - 3699 Scott Smith State Department of Education #4 Capitol Mall Little Rock , AR 72201 Mr . Christopher Heller Friday , Eldredge \u0026amp; Clark , LLP 2000 Regions Center 400 W. Capitol Little Rock , AR 72201 John W. Walker P .A. 1723 S . Broadway Little Rock , AR 72206 Mr . Mark Burnette Mitchell , Blackstock , Barnes , Wagoner , Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock , AR Mr . Stephen Jones Jack , Lyon \u0026amp; Jones , P .A. 3400 TCBY Tower 425 West Capitol Avenue Little Rock , AR 72201 Telephone (501) 375 - 1122 Ann Marshall Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol , Suite 1895 Little Rock , AR 72201 2 - Ms . Karla Burnett Suite 400 , 201 South Broadway Little Rock, AR 72201 Tim Gauger Senior Assistant Attorney General 323 Center Street Suite 200 Little Rock , AR 72201 - 2610 By: 3 AR Bar 95145 WILL BOND BOND \u0026amp; CHAMBERLIN TRIAL LAWYERS 602 W. MAIN JACKSONVILLE, ARKANSAS 72076 _.,A,- ugust 28 , 2003 TELEPHONE: (501) 982-9411 FAX: (501) 982-9414 NEIL CHAMBERLIN / Mr. James W. Mc mack 402 ffice \u0026amp; Courthouse 600 Ca ol Avenue Little R\u0026amp;ck , AR 72201 - 3325 RE : In the United States District Court , Eastern District of Arkansas , Little Rock Division , Little Rock School District v . Pulaski County Special School District no. 1 , et al. , Katherine Knight , et al ., Greg Bollen , et al ., Case No . 4 : 82CV00866 WRW/JTR Dear/~ . McCormack : Enclosed are an original and .two copies of an Order of Transcripts Pursuant to Rule 10 of the Federal Rules of Appellate Procedure in the above- referenced case. Please fil e this pleading and return file-marked copies to me in the encl osed self- addressed , stamped envelope . Thank you for your attention to this TWB : ab Enclosure(s) cc: Elaine Hinson Greg Bollen Sam Jones Scott Smith Chris Heller John Walker Mark Burnette Stephen Jones / Ann Marshall Karla Burnett Tim Gauger ( Regards , RECEIVED r::P 2 2003 OFFICE OF DESEGREGATION MONITORING UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT LITTLE ROCK SCHOOL DISTRICT V. No. 03-3088 PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DEFENDANTS (APPELLEES) DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. INTERVENORS KA THERINE KNIGHT, ET AL. INTERVENORS GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER INTERVENORS/MOV ANTS (APPELLANTS) CORPORATE DISCLOSURE STATEMENT Appellants, Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker, are not a - corporate entity and do not have any parent corporation. Appellants file this statement to comply with Rule 26. l of the Federal Rules of Appellate Procedure and 26. l A of the Eighth Circuit Rules. Respectfully Submitted, Bond \u0026amp; Chamberlin Attorneys for Plaintiff 602 West Main Street Jacksonville, AR 72076 Telephone (501) 982-9 1 Telefax (501) 982-941 By: CERTIFICATE OF SERVICE I, Will Bond, do hereby certify that I have served a copy of the foregoing pleading by United States Mail, addr;;\u0026gt;s;:911~uch attorney or party with sufficient prepaid postage to ensure first-class delivery this p..t aay of August, 2003: Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings, LLP 200 W. Capitol, Ste. 2300 Little Rock, AR 72201-3699 Scott Smith State Department of Education #4 Capitol Mall Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark, LLP 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 John W. Walker P.A. 1723 S. Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR Mr. Stephen Jones Jack, Lyon \u0026amp; Jones, P.A. 3400 TCBY Tower 425 West Capitol Avenue Little Rock, AR.72201 Telephone (501)375-1122 Ann Marshall Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, Suite 1895 - Little Rock, AR 72201 2 Ms. Karla Burnett Suite 400, 201 South Broadway Little Rock, AR 72201 Tim Gauger Senior Assistant Attorney General 323 Center Street Suite 200 Little Rock, AR 72201-2610 By: 3 WI LL BOND NEIL CHAMBERLIN Michael E. Gans~ Clerk BOND \u0026amp; CHAMBERLIN TRIAL LAWYERS 602 W. MAIN JACKSONVILLE, ARKANSAS 72076 August 28 , 2003 Eighth Circui Court of Appeals 24 . 329 s F. Eagleton U.S . Courthouse 111 S . Street St. Lo s , MO 63101 (314) 244 - 2400 TELEPHONE: (501) 982-9411 FAX: (501) 982-9414 RECEIVED SEP 2 - 2003 OFACEOF DESEGREGATION MONITORING RE : United States Court of Appeals for the 8th Circuit , Case No . 03 - 3088 Dear Mr . Gans : Enclosed are an original and five copies of a Corporate Disclosure Statement in the above- referenced case . Please file and return file - marked copies to me in the enclosed self-addressed , stamped envelope . Thank you for your attention to this matter . Regards , TWB : ab Enclosure(s) Michael E. Gans August 20 , 2003 Page Two cc: Greg Bollen Sam Jones Scott Smith Christopher Heller John W. Walker P .A. Mark Burnette Stephen Jones Ann Marshall Karla Burnett FILED US DISTRICT COURT EAST!:~,;. DISTRICT AF!KA~JSAS IN THE UNITED STATES DISTRICT COURT AUG 2 9 2003\" EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DMSION JAMES W. McCORMACK, CLERK LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER By: DEP CLERK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Pending is Joshua Intervenors' Motion for Extension of Time (Doc. No. 3799) to submit a fee petition regarding PCSSD's Motion to Enforce Settlement Agree:ment. Joshua Intervenors' motion is GRANTED. IT IS SO ORDERED this 29th day of August, 2003. UN!WuS~WJIJ!lti Wm. R. WILSON, JR. TO: DATE: FAX COVER SHEET UNITED STATES DISTRICT COlURT EASTERN DISTRICT OF ARKANSAS Chris Heller Sam Jones Steve Jones Jolm Walker Timothy Gauger Mark Hagemeier Ann Marshall Mark Burnette Clay Fendley Will Bond Mike Wilson e-z..y.o-, Telephone: 501-604-5140 Fax Nwnber: 501-604 5149 376-2147 376-9442 375-1027 374-4187 682-2591 682-2591 371-0100 375-1940 907-9798 982-9414 982-9414 There are Z. pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: ?\"\"'t:~~9~-- Office of Judge Wm. R. W~ U.S. District Court 600 West Capitol, Room 423 Little Rock, Arkansas 72201 Matt Morgan, LRSD Law Clerk 501-604-5141 This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.\u003c/dcterms_description\u003e\n \n\n\u003c/dcterms_description\u003e \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n \n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n\u003c/item\u003e\n\u003c/items\u003e"},{"id":"bcas_bcmss0837_1750","title":"Includes memorandum of allowance for extension of time, responses to Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement, PCSSD's response to Bollen intervenors, and notice of rejoinder.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. District Court (Arkansas: Eastern District)"],"dc_date":["2003-08-11"],"dcterms_description":null,"dc_format":["application/pdf"],"dcterms_identifier":null,"dcterms_language":["eng"],"dcterms_publisher":["Little Rock, Ark. : Butler Center for Arkansas Studies. Central Arkansas Library System"],"dc_relation":null,"dc_right":["http://rightsstatements.org/vocab/InC-EDU/1.0/"],"dcterms_is_part_of":["Office of Desegregation Monitoring records (BC.MSS.08.37)","History of Segregation and Integration of Arkansas's Educational System"],"dcterms_subject":["Little Rock (Ark.)--History--21st Century","Education--Arkansas","School districts","Pulaski County Special School District","Little Rock School District","Arkansas. State Board of Education","School integration"],"dcterms_title":["Includes memorandum of allowance for extension of time, responses to Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement, PCSSD's response to Bollen intervenors, and notice of rejoinder."],"dcterms_type":["Text"],"dcterms_provenance":["Butler Center for Arkansas Studies"],"edm_is_shown_by":null,"edm_is_shown_at":["http://arstudies.contentdm.oclc.org/cdm/ref/collection/bcmss0837/id/1750"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":["Available for use in research, teaching, and private study. Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["45 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eCourt filings: District Court, memorandum of allowance for extension of time; District Court, Knight intervenors' response to Pulaski County Special School Districts (PCSSD's) fourth motion to enforce settlement agreement and Little Rock School District's (LRSD's) motion to dismiss Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, order; District Court, motion to withdraw as counsel and for substitution of counsel; District Court, Pulaski County Special School District (PCSSD) response to the Bollen intervenors' motion to intervene; District Court, Pulaski County Special School District (PCSSD) memorandum in support of its response to the Bollen intervenors; motion to intervene; District Court, motion to dismiss the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, memorandum brief in support of motion to dismiss the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, the Bollen intervenors' response to the Pulaski County Special School District's (PCSSD's) statement of material facts related to the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, memorandum brief in support of the Bollen intervenors' response to the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, the Bollen intervenors' response to the Pulaski County Special School District's (PCSSD's) fourth motion to enforce settlement agreement; District Court, notice of rejoinder This transcript was create using Optical Character Recognition (OCR) and may contain some errors. - ILL WILSON - JUDGe: To: All Counsel UNITED STATES DISTRICT COURT EASTERN DISTRICT OF AAKANSAS 600 W. CAPITOL, ROOM 423 LITTLE ROCK. ARKANSAS 72201-3325 (S01) 804-5140 Facslrnlle (501) 804-5149 August 11, 2003 BYFAX RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING . RE: Little Rock School District v. Pulaski County Special School District, et al., 4:82CV00866 WRW/JTR Mr. Steve Jones, counsel for the North Little Rock School District, called Matt Morgan, my new LRSD law clerk, regarding the deadline I imposed in the August 6, 2003 Order. _The Order required that responses to the Fourth Motion to Enforce Settlement Agreement and for Allied Relief (Doc. No. 3760) and the Motion to Intervene (Doc. No. :,766) be filed no iater than 12:00 p.m., noon, today. Mr. Jones advises that be had been out of town since August 1, had just received notice of the order, and requested a one day extension to reply. Due to his circumstances, I have allowed Mr. Jones until 2:00 p.m., Tuesday, August 12, 2003 , to reply to. either of the pending motions. Cordially, c El~ Original to Clerk TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS Chris Heller Sam Jones Steve Jones Richard Roachell John Walker Timothy Gauger Mark Hagemeier Ann Marshall :Mark Burnette Scott Smith Clay Fendley Will Bond Mike Wilson Telephone: 501-604-5140 Fa.x Number: 501-604 5149 376-2147 376-9442 375-1027 374-4187 682-2591 682-2591 371-0100 375-1940 682-4249 907-9798 982-9414 982-9414 DATE: 8 II -o ':;\u0026gt; There are ;2 pages, including this Cover Sheet, being sent by this faGsirnile transmission. MESSAGE SENT BY: Office of Judge Wm. R. Wi1501 U.S. Distri,;t Court 600 West Capitol, Room 423 Little Rock, Arkansas 72201 Matt Morg1m, LRSD Law Clerk 501-604-5141 --- --- ------------ ~- - - ~ l , r;:.' .: ... ) _ _ w ~, l ~ ::. \"\\-:n t'. .1 '- . U.S. DI STRICT CCURT IN THE UNITED STATES DISTRICT cou:~r EASTERN DiSTisiCT ARKANSAS EASTERN DISTRICT OF ARKANSAS t( - /.:..-..:G i 1 \"L.\"~ ~J WESTERN DIVISION -: JAMES W. McCORMACK, CLEF-K LITTLE ROCK SCHOOL DISTRICT By_ ---~'T\"TT..,._.....,._.,,..... PLAIN I lllf CL~R--.- V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. RECEIVED DEFENDANT INTERVENORS INTERVENORS AUG 1 2 2003 OFFICE OF DESEGREGATION MONITORING MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, ET AL. MOVANT/INTERVENORS KNIGHT INTERVENOR'S RESPONSE TO PULASKI COUNTY SPECIAL SCHOOL DISTRICT'S \u0026lt;PCSSD'S) FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT AND LITTLE ROCK SCHOOL DISTRICT'S (LRSD'S) MOTION TO DISMISS PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT Knight Intervenors support PCSSD's motion in full, but put forward a different rationale I for why this Court must act to enjoin the State Board of Education now, rather than await the outcome of the election the State Board has ordered. A. The State Board Has Unilaterally Initiated an Alteration of the Settlement Agreement, and PCSSD's Desegregation Plan, Over Which It No Longer Has Discretionary Authority to Stop; It has Taken This Action In Clear Contravention of This Court's Authority and Obligation to Make Prior Approval of Any Such Proposed Alterations If the voters approve the plan to create a new district on September 16, 2003, the State Board \"shall order the creation of the new school district.\" A.C.A. 6-13-1505(a). To that extertt, the State defendant has taken its final discretionary administrative action on the issue of creation of a new school district, notwithstanding the outcome of the vote. The State Board's \"vote\" has been cast in favor of the creation of a new district whether that negatively impacts the ---- - ------ I I I I I I I I I I I I I desegregation of the Pulaski County districts or not. At this point, the question is not \"what - happens if the voters approve the plan,\" - the State Board will be bound to the creation of the new district automatically - but, \"whether the State Board has made an \"end run\" around the Court's authority to approve proposed alterations of the desegregation plans before the alteration is made.\" As discussed below, the State Board has adopted the detachment proponents position that this Court will make the necessary future adjustments to the settlement agreement and desegregation plans to accommodate the creation of a new district, despite its own statutory obligation, A. CA. 6-13-1504(b )(2)(A), to investigate the question of whether there will be any negative impact on the Pulaski County school districts' desegregation efforts and reject the proposal for an election if any negative impact exists. Unfortunately, if PCS SD awaits the statutorily required invocation of this Court's after-the-fact approval, see A.CA. 6-13- - 1505(b)(2), the analysis of those issues will c9me too late. The new district will be afait accompli: by statue, the State Board must create a new district if the voters approve. By statute, it is then the new district which petitions the Court for what will amount to absolution for its own creation. See A. CA. 6-13-1 SOS(b )(2). It is a fundamental tenet of this Court's jurisdiction over the settlement of this case that a party seeking an alteration ofthe settlement agreement must obtain the Court's prior approval. The State Board has not done so prior to passing on its discretionary authority to stop the creation of a new district. It has approved the proposed new district and forwarded it to the public for a vote. The very act of doing so denigrates the very existence of one of the parties to this litigation, accedes to the creation of a new entity over which the court must then assume jurisdiction, and thus, fundamentally, seeks to change the desegregation efforts of all three Pulaski County school districts. This Court should therefore stay the order of an election unless the Court concludes - that the State Board is entitled to approval of an alteration of the settlement agreement through creation of a new entity. 1 Toe Court should not await the dismemberment of one of the parties to the Settlement Agreement to consider whether unilateral acts initiated by one party to dismember another party violate the settlement agreement. B. The State Board Has Proceeded in Contravention of State Law By Abdicating its Role to Approve an Election Only If the Creation of the New District Does Not \"Hamper, Delay or in any Manner Negatively Affect Desegregation Efforts\" of PCSSD. The State Board's own inquiry into the critical questions of whether the creation of the proposed new district would negatively effect the settlement agreement, or desegregation generally, was limited to its statutorily required request for an attorney general opinion. The Attorney General's first opinion clearly only raised more questions which, it said, the Board must answer before it could make a legitimate factual determination of the desegregation questions / can me made. For the reasons set forth below, we cannot definitively opine as to whether the detachment would in fact negatively affect desegregation in any school district or negatively impact the effort of the State to assist any '.'affected\" school district in the desegregation of public schools in the State. Nonetheless, the proposed detachment raises serious questions with regard to potential negative impact on the ability of one or more of the schools districts in Pulaski County to comply with their court imposed obligations in the Pulaski County school desegregation litigation. For this reason, before it authorizes an election on the proposed detachment, the State Board of Education should carefully scrutinize the proposal, gathering whatever information, 1So far, the State Bord has not even filed such a Motion. Further, based upon the PCSSD's pending motion and the discussion below, Knight argues that the Movant's and the State Board will not be able to meet the standard of proof necessary to approve such a fundamental alteration of the Settlement Agreement and the other outstanding Orders of the Court which establish the contours of PCSSD's present desegregation plan. commentary or testimony it deems necessary (including input from the three school districts in Pulaski County), to ensure that it has properly exercised its responsibility to determine whether the creation of the new district would hamper . . . . Attorney General Opinion of June 4, 2003, (italics in original). After a review of some of the questions which would have to be answered to make these determinations, it repeatedly concluded that there was insufficient information before the Board to make the determination required by the statute. With this clearly equivocal opiPJon in hand, the State Board was not to be dissuaded. It insisted on clarification of the opinion from the Attorney General2 and responses from the detachment petitioners and others. The proponents offered a legal opinion by attorney Clay Fendley to compete with the Attorney General's opinion. But that opinion, again, invokes this Court's authority to cure all the harms that will be visited on the desegregation efforts in Pulaski County and violations of the Orders of this Court that will result from secession and appears to I concede that detriment to the desegregation plans are inevitable.3 Mr. Fendley's opinion is also defective as a basis for meeting the State Board's statutorily required review of the negative impact of the proposal because, as Mr. Fendley states, \"my analysis will be limited to two 2The Attorney General's second response still gave the State Board no basis for its approval. The Attorney General opined that before granting its approval, the State Board must be assured that \"the detached district and its students will be permitted to participate in all existing transfer programs under the various orders and agreements in the Pulaski County desegregation case.\" To do that, the Board would have had to seek this Court's prior approval for the participation of the newly created detached district in these programs. It has not pursued that assurance from this Court. 3 Among the plans Mr. Fendley has for this Court to solve all these new problems that are likely to occur are, \"ordering the new district to retain the PCSSD teachers currently employed at the detached schools,\" p. 8, and \"address [the anticipated] overcrowding at Sylvan Hills\" p. 7, by \"revis[ing] the attendance zones for all of PCSSD's high schools,\" p. 6, \"discontinue [Sylvan Hills] specialty programs,\" or even \"build add,itional classrooms at Sylvan Hills High School.\" - See PCSSD's Exhibit 17, Fendley Opinion Letter, at the indicated pages. areas,\" \"student assignment and faculty.\" Clearly, other considerations must be made. The detachment will necessarily result in the loss of teacher and support service personnel. Contractually, those losses to PCSSD will be in reverse order of seniority in each certification area, not by a teacher's current association with one school in the PCSSD or another. The teachers currently assigned to schools in the detachment area are still PCSSD employees; they may thus choose to exercise their right to remain in PCSSD where they have a negotiated contract and job security rather than resign for the unknown contract. Thus, the Court must consider \"what affect will the extensive redistribution of teachers within and without PCS SD do to the success of the desegregation efforts in place?\" \"What will that redistribution look like in terms of the experience of the teachers and racial makeup once the break-up occurs? Moreover, \"Does the Court have the authority to alter the plans in such a radical manner as will be required by the detachment being - forwarded?\" \"Can the Court even order the detachment area teachers to remain in their current school, even if it requires them to resign from the PCS SD and be re-employed by the new district?\" The answer to the last question appears to be a resounding \"No\" and therefore dispositive of the detachment question. \"A federal district court does have remedial authority in necessary cases, to modify or even abrogate [employment] agreements that perpetuate segregation or impede a desegregation plan. Such action however can be taken only 'after an evidentiary hearing and upon a finding that the change is essential to the desegregation remedy.'\" Knight v. PCSSD, 112 F.3d 953 (8th Cir. 1997)(quoting LRSD v. PCSSD, 839 F.2d 1296, 1315 cert denied 488 U.S. 869 (1988). No one is even arguing that the proposed detachment is \"essential to the desegregation remedy,\" (clearly it is not), and therefore, the numerous other adjustments to the existing agreement and plans which this Court would be asked to take cannot be made by order of this Court. The Board agreed to assign these tasks to this Court rather than make an adequate inquiry into the issues itself. For these reasons, the time for this Court to act is now. The appropriate Order is to stay the election and put the burden of proof on the State to meet the requirements for altering the Settlement Agreement and PCSSD's desegregation plans, as the Board itself anticipates these must be altered. WHEREFORE, Knight Intervenors join PCSSD in respectfully requesting that the Court enjoin the election approved by the State Department of Education or enjoin the State Board from performing its ministerial duties under A. C.A. 6-13-1505( a) relative to the creation of a new district out of the PCSSD. Respectfully submitted, Clayton Blackstock Mark Burnette MITCHELL,BLACKSTOCK,BARNES WAGONER \u0026amp; IVERS 1010 West Third P. 0. Box 1510 Little kock, AR 72203-1510 (501) 378-7870 By:2?7~~ Mark Burnette ABN # 88078 Certificate of Service A true and accurate copy of the foregoing has been mailed to the following by U.S. Mail, postage paid, on this jJ_.,IJ.,jay of~ ,.z4: , 2003: Mr. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell 20 Nottingham, #3 Little Rock, AR 72205 James M. Llewellyn, Jr. Thompson \u0026amp; Llewellyn 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Dennis R. Hansen Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 John Clayburn Fendley, Jr. Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol A venue Little Rock, AR 72201 Sharon Carden Streett Streett Law Offices P. 0. Box 250418 Little Rock, AR 72225-0418 I Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol , Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Mark Arnold Hagemeier Arkansas Attorney General 's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 Norman J. Chachkin NAACP Legal Defense \u0026amp; Educ. Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 By: 72ld, ~ Mark Burnette BAR NO. 88078 RECEIVED AUG 1 2 2003 - OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER FIL.ED U.S. DISTR1'.::T COURT EASTEP.N 01sr:::1CT ARKANSAS AUG 1 l 2003 JAME~LERK By:7 ~~ PLAINTIFF DEFENDANTS INTERVENORS INTER VEN ORS Pending is Senior Assistant Attorney General Timothy G. Gauger's Request for Entry of Appearance (Doc. No. 3772) as additional counsel of record for the Arkansas Department of Education for the limited purpose of addressing the PCSSD's \"Fourth Motion to Enforce Settlement Agreement and for Allied Relief.\" The Request for Entry of Appearance by Mr. Gauger for the above mentioned limited purpose is GRANTED. IT IS SO ORDERED this 11th day of August, 2003 . UNITED ST ATES DISTRICT JUDGE THIS DOCUMENT ENTERED GN DOCKET SHE:ET IN COM.PLIANCE WIT~1RULffe 58 AND/OR79-) FRCP ON it II {_p3 BY ~ -7-r-'\"'-.::_.:..... _ WILL BOND NEIL CHAMBERLIN VIA AND BOND \u0026amp; CHAMBERLIN TRIAL LAWYERS 602 W. MAIN JACKSONVILLE, ARKANSAS 72076 August 11 , 2003 The onorable William R. Wilson , Jr. 60 W. Capitol , Room 423 ittle Rock , AR 72201 TELEPHONE: (501) 982-9411 FAX: (501 ) 982-9414 RECEIVED AUG 12 2003 OFACEOF DESEGREGATION MONITORING RE : Little Rock School District v . Pulaski County School District , et al ., United States District Court , Eastern District of Arkansas , Western Division , Case No . 4 : 82CV00866WRW - August 18th Hearing Dear Judge Wilson : One of the Intervenors ' counsel , Clay Fendley , has had a vacation scheduled for quite some time . He cannot move his vacation . The vacation conflicts with the August 18 th hearing date . Can Mr . Fendley be a part of the hearing via telephone or video conference? Any help with accommodating the Intervenors would be greatly appreciated . est Regards , TWB :tt Enclosure(s) cc : All Counsel school district detachment\\judge wilson.aug.11 .03 RECENEO r~ \"J - ~; -~ ) It\" :J !. !.':'\"\"' ! ~.:... . EA u.s. DISTR1cr CcuRT - . - STERN OISTR1CT AR MN SAS 2, 1uu1 IN THE UNITED STATES DISTRICT COURT ~\\.\\G l EASTERN DISTRICT OF ARKANSAS JAMES W. McCORMACK CLERK Off\\Ct Of Ql\\\\ll\\i WESTERN DIVISION By: , , n~itGRtG~1\\0\" ~Qll\\1 c..EP CLER. rnTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, ET AL. DEFENDANT INTERVENORS INTERVENORS MOVANT/INTERVENORS MOTION TO WITHDRAW AS COUNSEL AND FOR SUBSTITUTION OF COUNSEL Come the Knight Intervenors, by and through their undersigned counsel, and for their Motion to Withdraw as Counsel and for Substitution of Counsel, state: 1. The Knight Intervenor's former counsel, Richard W. Roachell, has retired from the practice of law, and therefore requests to withdraw as counsel for the Knight Intervenors. 2. Intervenors have engaged Clayton Blackstock and Mark Burnette, MITCHELL, BLACKSTOCK, BARNES, WAGONER, IVERS, \u0026amp; SNEDDON, PLLC, 1010 West Third Street, Little Rock, Arkansas 72201, (501) 378-7870, as counsel to replace Mr. Roachell in this matter. 3. Intervenors request that the Court and parties direct all future services and correspondence to Mark Burnette. WHEREFORE, Knight Intervenors respectfully request that the Court grant the Motion to Withdraw as Counsel and for Substitution of Counsel and that Clayton Blackstock and Mark Burnette be substituted as their counsel of record. Respectfully submitted, Clayton Blackstock Mark Burnette MITCHELL, BLACKSTOCK, BARNES WAGONER \u0026amp; IVERS 1010 West Third P. 0 . Box 1510 Little Rock, AR 72203-1510 (501) 378-7870 By: Z?lrklhta~K Mark Burnette ABN # 88078 Certificate of Service A true and accurate copy of the foregoing has been mailed to the following by U.S. Mail, postage paid, on this -/ /--11ciay of ~'!,Av ,'.\u0026gt;-: , 2003: Mr. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell 20 Nottingham, #3 Little Rock, AR 72205 James M. Llewellyn, Jr. Thompson \u0026amp; Llewellyn 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Dennis R. Hansen Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 John Clayburn Fendley, Jr. Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol A venue Little Rock, AR 72201 Sharon Carden Streett Streett Law Offices P. 0. Box 250418 Little Rock, AR 72225-0418 I Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol , Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. 412 South Eighteenth Street P. 0. Box 818 Fort Smith, AR 72902-0818 Mark Arnold Hagemeier Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 Norman J. Chachkin NAAC.? Legai Defense \u0026amp; Educ. Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013 By: 2nw.JP~ Mark Burnette BAR NO. 88078 EDWARD L. WRIGHT (1903-1977) ROBERT S. LINDSEY (1913-1991) ISAAC A. SCOTT, JR. JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW GORDON S. RATHER, JR . ROGER A. GLASGOW C. DOUGLAS BUFORD, JR . PATRICK J. GOSS ALSTON JENNINGS , JR. JOHN R. TISDALE KATHLYN GRAVES M. SAMUEL JONES 111 JOHN WILLIAM SPIVEY Ill LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLEST . COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER, JR . WALTER E. MAY GREGORY T . JONES H. KEITH MORRISON BETTINA E. BROWNSTEIN WALTER McSPADDEN JOHN D. DAVIS I.UDY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse 600 West Capitol Avenue, Suite 360 Little Rock; Arkansas 72201 200 WEST CAPITOL A VENUE SUITE 2300 LITTLE ROCK, ARKANSAS 72201 - 3699 (501) 371-0808 FAX (501) 376- 9442 www . wlj.com OF COUNSEL ALSTON JENNINGS RONALD A. MAY BRUCE R . LINDSEY JAMES R. VAN DOVER Writer 's Direct Dial No . 501 -2 12 - 1273 mjoncs@wlj .com August 11, 2003 Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: KIMBERLY WOOD TUCKER RAY F. COX . JR . TROY A. PRICE PATRICIA SIEVERS HARRIS KATHRYN A. PRYOR J. MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL D. BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C . TAD BOHANNON KRISTI M. MOODY J. CHARLES DOUGHERTY M. SEAN HATCH J. ANDREW VINES JUSTIN T. ALLEN MICHELLE M. KAEMMERLING SCOTT ANDREW IRBY PATRICK D . WILSON REGINA A. SPAULDING Lict:OSt:dtopn,cdcebefrx'elbt:Ulill:ltlSate:1 h1t:at aod Tn::tDUt Ol6ce RECEIVED AUG 1 2 2003 OFFICE OF DESEGREGATION MONITOffiNG Enclosed are courtesy copies of PCSSD's response to the \"Bollen lntervenors\" Motion to Intervene, and memorandum in support. The original have been filed and the parties served. Thank you for your consideration in this matter. MSJ:ao Encls. cc/w/encls.: 440028-vl Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ~ Honorable J. Thomas Ray (via hand delivery) All Counsel of Record (via U.S. Mail) Mr. Ray Simon (via U.S. Mail) Mr. Scott Smith (via facsimile and U.S. Mail) Mr. Will Bond (via facsimile and U.S. Mail) Mr. Mike Wilson (via facsimile and U.S. Mail) Mr. John C. Fendley, Jr. (via facsimile and U.S. Mail) Mr. Timothy Gauger (via hand delivery) Mr. Mark Burnett (via U.S. Mail) IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 1 2 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY and SUE ANN WHISKER MOV ANTS/INTERVENORS PCSSD RESPONSE TO THE \"BOLLEN INTERVENORS\" MOTION TO INTERVENE PCSSD for its response, states: 1. Admit that the movants seek to intervene pursuant to Fed. R. Civ. P. 24(a)(2). 2. Generally admits the allegations contained in Paragraph 2 but deny that the movants' \"interest\" is sufficiently unique to warrant intervention and states that the interest set forth parallel those of the Arkansas Board of Education which is already a party to this matter. 3. Admits that a new district cannot be created without an election but reiterates its position that the constitutional scheme pursued by the movants is both unconstitutional and violative of the 1989 Settlement Agreement. 4. Denies the allegations contained in Paragraph 4. S. Admits the allegations contained in Paragraph 5. 6. Admits the allegations contained in Paragraph 6. 439522-v1 WHEREFORE, the PCSSD prays that the motion be denied and for all proper relief. Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 Jones III (7 or Pulaski oun Special trict CERTIFICATE OF SERVICE On August)!_, 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 439522-v1 2 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 439522-v1 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 1 2 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY and SUE ANN WHISKER MOV ANTS/INTERVENORS PCSSD MEMORANDUM IN SUPPORT OF ITS RESPONSE TO THE \"BOLLEN INTERVENORS\" MOTION TO INTERVENE The State has now filed its response to the PCSSD Fourth Motion to Enforce Settlement Agreement and for Allied Relief. The PCSSD movants, which include certain Board members in both their official and individual capacities, believe that the response of the State demonstrates that the State will adequately and properly represent the interests of the \"Bollen Intervenors\" on all issues presented in this action. Interestingly, however, the upshot of the Bollen Intervenors claims to intervene demonstrate that this matter must be ripe for adjudication; otherwise, they could not currently assert, with any logical force, a compelling need to intervene now. Accordingly, the PCSSD movants submit that the force and vigor of the Bollen Intervenors' position re-enforces the notion that the issues presented by the PCSSD movants 440038-v1 - are ripe for consideration and for the best interest of all of the parties to this case, and those interested in the outcome of these issues, these matters should be adjudicated now rather than at some distant point in the future. Stated another way, if the \"disposition of the action may as a practical matter impair or impede the applicants' ability to protect [its] interest\", then there must be legitimate and cogent reasons why the intervention is being sought now rather than after the election. The intervenors cannot have it both ways. Accordingly, their motion to intervene is a legal statement that the Court should adjudicate the issues now rather than later. 440038-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 nty Special 2 CERTIFICATE OF SERVICE On August LL, 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 440038-v1 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 M. ~ es III : 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHf, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER MOTION TO DISMISS RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT - Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker (hereinafter the \"Bollen Intervenors\") for their Motion to Dismiss the PCSSD's Fourth Motion to Enforce Settlement Agreement state: 1. The Bollen Intervenors seek to create a new school district in northeast Pulaski County by detaching territory from the PCSSD through the process set forth in Ark. Code Ann. 6-13-1501 through 1505 (Michie Supp. 2002). In accord with that process,1 the State Board 1The election will be the fourth step in the process established by Ark. Code Ann. 6- 13-1501 through 1505. The Bollen Intervenors initiated the process by commissioning an independent feasibility study. Next, they gathered petition signatures and submitted them to the State Board of Education, along with additional information required by statute. Third, on July 14, 2003, the State Board of Education held a hearing on the petition, found it complied with the detachment statute and voted to order an election. Page 1 of 4 of Education on July 16, 20032 ordered an election to be held September 16, 2003 so that voters residing in the proposed new school district may vote on whether to detach from the PCSSD. If a majority of voters favor detachment, the State Board of Education will order the creation of the new district. See Ark. Code Ann. 6-13-1505(a). 2. In its Fourth Motion to Enforce Settlement Agreement, the PCSSD argues that detachment will violate the Court's Consent Decree arising out of the parties' 1989 Settlement Agreement and asks this Court to order the State Board of Education to rescind its July 16, 2003 order and to stop the September 16, 2003 election on detachment. 3. Also in the PCSSD's Fourth Motion to Enforce Settlement Agreement, individual PCSSD board members claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in the September 16, 2003 election. See PCSSD's Motion, ,r 9. 4. This Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because their claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Fourth Motion to Enforce Settlement Agreement should be dismissed. 2Although the hearing was July 14, 2003, the State Board of Education did not actually issue its order until July 16, 2003. Page2 of 4 WHEREFORE, the Bollen Intervenors pray that the PCSSD's Fourth Motion to Enforce Settlement Agreement be dismissed; that they be awarded their costs and attorneys' fees expended herein; and that they be awarded all other just and proper relief to which they may be entitled. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982'.'9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors BY: t!: c. 9-w1ll V[\u0026lt; ~ ~ C. Fendley.Jr. Page 3 of 4 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-34 72 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaz.a 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT - I. Ripeness. This Court must presume that it lacks jurisdiction \"unless 'the contrary appears affirmatively from the record.\"' Bender v. Williamsport Area School Dist., 475 U.S. 534,546 (1986) (quoting King Bridge Co. v. Otoe County, 120 U.S. 225,226 (1887)). \"It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.\" Bender, supra, at 546, n. 8 (quoting Warth v. Seldin, 422 U.S. 490, 517-518 (1975)). The PCSSD fails to allege facts demonstrating that its Fourth Motion to Enforce Settlement Agreement is ripe for adjudication. \"The basic rationale of the ripeness doctrine is 'to prevent the courts, through avoidance Page I of 6 of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties.\"' National Right to Life Political Action Committee v. Conner, 323 F.3d 684,692 (8th Cir. 2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano y. Sanders, 430 U.S. 99 (1977)). Consistent with this rationale, \"courts deciding whether a dispute is ripe should consider (1) the hardship to the plaintiff caused by delayed review; (2) the extent to which judicial intervention would interfere with administrative action; and (3) whether the court would benefit from further factual development.\" Id. Each of the three factors weighs in favor of a finding that the PCSSD's motion is not ripe. First, the PCSSD will suffer no hardship by delaying review until after the September 16, 2003 election. The detachment statute requires this Court's approval before detachment may actually take place. See Ark. Code Ann. 6-13-1505(b)(2). Consequently, the PCSSD will not suffer any harm before this Court has an opportunity to resolve the issues raised in its Fourth Motion to Enforce Settlement Agreement. Next, this Court granting the relief sought by the PCSSD would substantially interfere with administrative action taken by the State Board of Education. The State Board of Education ordered an election based on its finding that the Bollen Intervenors satisfied the requirements of the detachment statute. The PCSSD's request that the State Board of Education be directed to rescind its order would, if granted, directly interfere with the State Board of Education's action taken pursuant to state law. Page 2 of 6 Finally, this Court could benefit from further factual development, in that the Court needs to wait and see whether the voters approve detachment. If they do not, the PCSSD's motion will be rendered moot. It is well-settled that \"[a] claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.\"' Texas v. United States, 523 U.S. 296, 300 (1998)(quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). The PCSSD's Fourth Motion to Enforce Settlement Agreement is not ripe for adjudication because the alleged harm is contingent upon voter approval of detachment in the September 16, 2003 election ordered by the State Board of Education. Accordingly, this Court lacks jurisdiction to hear the motion, and it should be dismissed. n. Individual Board Member Claims. The PCSSD may argue that a live controversy exists based on the constitutional claims made by individual PCSSD board members. In their individual capacities, they claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in the September 16, 2003 election. See PCSSD's Motion, ,i 9. However, this Court does not have jurisdiction to decide these claims as a part of the present case for two reasons. First, this Court's remedial authority is limited to interpretation and enforcement1 of its Consent Decree. Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997). In that case, this Court (the Honorable Susan Webber Wright) enjoined a strike by the PCSSD's teachers. The teachers 1Enforcement includes modification of the Consent Decree based on changed factual circumstances. See Rufo v. Inmates of the Suffolk County Jail. 502 U.S. 367,388 (1992). Page 3 of 6 appealed, and the Eighth Circuit noted that the Consent Decree does not address the teachers' right to strike and reversed holding, \"The jurisdiction of the District Court to enforce [the Consent Decree] does not include the authority to resolve other disputes among the parties or to adjust their legal rights and responsibilities arising from other sources.\" Id. Similarly, the individual board members' constitutional claims have nothing to do with the Consent Decree. They allege that the detachment statute denies them due process and equal protection because they cannot vote in the detachment election. The Consent Decree simply does not address who should be permitted to vote in a detachment election. Therefore, this Court does not have jurisdiction to address the constitutional claims being asserted by the individual board members. Second, this Court lacks jurisdiction over the constitutional claims of the board members because they are not parties to this case in their individual capacities. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-44 (1986)(individual school board member sued in his official capacity lacks standing to appeal grant of declaratory judgment against school district); Doe v. Claiborne County, Tenn., 103 F.3d 495, 511 (6th Cir. 1996) (individual school board members cannot act under of color of state law as required for liability under 1983 ); Ark. Code Ann. 6-13-620 (establishing the power and duties of school boards). To pursue their individual claims, the board members must file a separate case. m. Conclusion .. In sum, this Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is Page4 of 6 contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because the claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Motion to Fourth Enforce Settlement Agreement should be dismissed. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors Page 5 of 6 ------ - - -- - CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-34 72 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 ~hnC.. F en~dley,J~r. ,~ Page 6 of 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION L!TI1..,E ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER THE BOLLEN INTERVENORS' RESPONSE TO RECE\\\\JED AUG 11 1003 Off\\CE Of OESEGREG~i\\ON MONliORlltG PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S STATEMENT OF MATERIAL FACTS RELATED TO THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT The Bollen Intervenors hereby respond in turn to each numbered paragraph of the PCSSD's Statement of Material Facts related to the PCSSD's Fourth Motion to Enforce Settlement Agreement: 1. Admitted. 2. Admitted. 3. The Bollen Intervenors believe that the boundary adjustment occurred June 19, 1986 and that it involved 14 schools, but are without sufficient information to admit or deny whether it caused the PCS SD to lost one-third of its tax base. 4. Admitted. Page 1 of 6 - - 5. 6. 7. 8. 9. 10. 11. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. 12. The Bollen Intervenors admit that the State's attorney and Senator Howell were reported by the Arkansas Gazette to have made the alleged statements. 13. Admitted. 14. The Bollen Intervenors admit that the Arkansas Democrat reported as alleged. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. Admitted. 21. Admitted. 22. Admitted. 23. Admitted. 24. The Bollen Intervenors admit that the General Assembly enacted Ark. Code Ann. 6-13-1501, et~- They deny the remaining allegations contained in paragraph 24. Page 2 of 6 25. The Bollen Intervenors admit that an initial feasibility study was completed on or about November 21, 2002. They deny the remaining allegations in paragraph 25. 26. The Bollen Intervenors admit that the initial feasibility study examined three alternatives for detachment and recommended alternative one be selected. They deny all remaining allegations in paragraph 26. 27. The Bollen Intervenors admit that an addendum dated February 25, 2003 completed and added to the November 21, 2002 feasibility study. They deny all remaining allegations in paragraph 27. 28. The Bollen Intervenors admit that a petition drive was commenced after the completion of the February 25, 2003 addendum and admit that subsequently the petition drive was concluded and petitions were delivered to the Arkansas Department of Education on May 19, 2003. 29. The Bollen Intervenors admit that the legislature approved an amendment to Ark. Code Ann. 6-13- 1501, et seq. adding a criterium allowing detachment from school districts which encompass a total area of seven hundred square miles or more. They deny all remaining allegations in 29 and affirmatively assert that there is at least one other school district in excess of seven hundred square miles. 30. Admitted. 31. The Bollen Intervenors admit that the Attorney General's office rendered its first opinion letter on June 4, 2003. The letter speaks for itself, and they deny the allegations contained in this paragraph to the extent inconsistent therewith. 32. The Bollen Intervenors admit that the State Board of Education conducted a Page 3 of 6 hearing on or about June 9, 2003. That hearing was recorded and is being transcribed, and the transcript will speak for itself. They deny all remaining allegations in paragraph 32. 33. The Bollen Intervenors admit that supplemental materials were provided to the State Board of Education and to the Attorney General's office on or about June 27, 2003. They deny the remaining allegations in paragraph 33. 34. The Bollen Intervenors admit that on or about July 11, 2003 the Attorney General issued an opinion concerning the issue of detachment and the effect of detachment on desegregation. They state that the Attorney General's opinion speaks for itself. They deny the remaining allegations in paragraph 34. 35. Admitted. 36. Admitted. 37. Admitted. 38. Admitted. 39. Admitted. Page 4 of 6 Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants BY 7Jb. {!__ '}f2J_pA{, ~. ;c. Fendley, Jr. Page 5 of 6 ., 4 ' .... CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 3 23 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 6 of 6 IN THE UNIIBD STAIBS DISTRICT COURT EASIBRN DISTRICT OF ARKANSAS WESIBRN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER MEMORANDUM BRIEF IN SUPPORT OF THE BOLLEN INIBRVENORS RESPONSE TO RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INIBRVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT I. The Consent Decree. A. Interpretation of Consent Decrees. \"[C]onsent decrees bear some of the earmarks of judgments entered after litigation. At the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts.\" Int'! Ass'n of Firefighters v. City of Cleveland, 4 78 U.S. 501, 519 (1986). For purposes of interpretation and enforcement, judicially approved consent decrees are generally treated like contracts, United States v. City of Fort Smith, 760 F.2d 231, 233-34 (8th Cir. 1985), and fundamental principles of contract interpretation under state law govern their interpretation. United States v. City of Northlake, 942 F.2d 1164, 1167 (7th Cir. 1991 ). Even so, \"[t]he interpretation of a consent decree should be a practical enterprise, Page 1 of 14 influenced, perhaps, by technical rules of construction, but not controlled by them.\" LRSD v. PCSSD, 60 F.3d 435, 436 (8th Cir. 1995). B. Section II. J. The PCS SD argues that Section II. J. of the 1989 Settlement Agreement prohibits detachment of territory from the PCSSD to create a new school district. Section II. J. provides: The State, Joshua and the LRSD recognize that PCSSD and NLRSD are independent, sovereign desegregating school districts operating pursuant to court orders and agreements and that this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation activities with the LRSD and others. 1989 Settlement Agreement, p. 9. The PCSSD contends that, by recognizing the PCSSD as an \"independent, sovereign desegregating school district[],\" the parties intended to prohibit \"any new usurpation of [the PCSSD' s] territory, facilities and assets . ... \" PCSSD Brief, p. 2. Apparently believing that Section II. J. is ambiguous, the PCSSD purports to provide the Court with extrinsic evidence of the parties' intent. See City ofNorthlake, 942 F.2d atl 167. In fact, the PCS SD provides the Court a series of newspaper articles and letters, none of which directly address the parties' intent. Rather, they show that various persons in the media and Legislature speculated that Section II. J. could preclude future consolidation of the three Pulaski County school districts, and if so, thought that was a bad idea. See, ~. PCSSD Exhibit 6 (indicating that Section II. J. \"could become an impediment to a countywide consolidation in the future, and if so it is an unfortunate provision.\"). This speculation is inadmissible hearsay and should not be considered by the Court. See Fed. R. Evid. 801 and 802. Moreover, even assuming the speculation was correct, it would only prove that Section II. J. was intended to prevent consolidation of the three Pulaski County school districts. It does not establish that Page 2 of 14 Section Il. J. was intended to prohibit \"any new usurpation of [the PCSSD' s) territory, facilities and assets ... ,\" as alleged by the PCSSD. The only evidence of intent the Bollen Intervenors have been able to locate to date1 comes from hearings before the Court's Special Master, Aubrey McCutcheon, during which the parties explained to Special Master McCutcheon the provisions of the 1989 Settlement Agreement. In an April 19, 1989 hearing, McCutcheon described his understanding of Section Il. J. as follows: I am also recommending to the court with respect to the settlement that the language in the settlement not be treated as imposing an absolute restriction on the consideration of any particular type of school, whether it be magnet, interdistrict school, consolidation, anything else. That the language in the settlement agreement that refers to the sovereignty and independence of the districts be considered just that, language which acknowledges the current status, but does not in any way infringe on the court's jurisdiction to determine whether or not there ought to be a merger of certain Junctions for the purpose of being more cost effective and more desegregative and a wiser use of the spending of the money. $120 million is a lot of money, and we ought to see to it that it is spent wisely and carefully, along with any other monies that are spent by the school districts as a part of their implementation of the desegregation responsibilities. See Exhibit 1 attached hereto, p. 22-23 (emphasis supplied). Special Master McCutcheon's interpretation is consistent with the plain language of Section II. J. Section II. J. was written in the present tense. It would have been easy to include language specifically prohibiting future consolidation or any other usurpation of the PCSSD's power, territory or assets, but no such language was included. Regardless of what was meant by \"sovereign, independent school district[),\" Section II. J. was unambiguously limited to the present and did not address future usurpations of the power, territory or assets of the PCSSD. Therefore, Section II. J. does not prohibit, 14 years later, the detachment of territory from the 1If the Court agrees with PCSSD that Section II. J. is ambiguous, the Bollen Intervenors respectfully request a reasonable amount of time to conduct discovery on this issue. Page 3 of 14 PCSSD to create a new school district. C. Section II. L. The PCSSD' s argument that detachment violates Section II. L. of the 1989 Settlement Agreement is answered in the discussion of the alleged negative impact on desegregation in Section III of this brief. II. Egual Protection. A. Introduction. Tue individual PCSSD board members argue that the detachment statute violates the Equal Protection Clause of the Constitution because it provides that only those \"residing in the territory to be detached shall be entitled to vote in the election\" on detachment. See Ark. Code Ann. 6-13-1504(3). Their argument fails because they have no constitutional right to vote on detachment. See Hunter v. City of Pittsburgh, 201 U.S. 161, 178 (1907). Since no constitutional right is at stake, the question before this Court is whether the detachment statute is rationally related to a legitimate governmental objective. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 70 (1978)(applying rational basis review to a State statute granting authority to a cities over nonresidents who were unable to vote in city elections); Burdick v. Takushi, 504 U.S. 428,433 (1992)(setting forth the standard for challenges to election laws generally). The detachment statute should be upheld because it is rationally related to a legitimate governmental objective -- encouraging community support for education. Tue detachment statute encourages community support for education by providing small communities in large school districts a mechanism for assuming control of their schools. See Ark. Code Ann. 6-13- 1501 (a)(l ). Tue election required by the detachment statute serves this objective by testing the Page 4 of 14 community's support for detachment. B. No Substantive Constitutional Right at Stake. The individual PCS SD board members have no constitutional right to vote on detachment. School districts are political subdivisions of the State of Arkansas, and the State of Arkansas has discretion to decide the \"nwnber, nature and duration of powers\" conferred upon school districts and ''the territory over which they shall be exercised.\" Id. at 178. See Sailors v. Bd. of Educ. of County of Kent, 387 U.S. 105 (1967) (applying Hunter to school districts). In exercising this discretion, the State of Arkansas \"at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it . .. \" Hunter, 201 U. S. at 178 ( emphasis supplied). Moreover, \"all this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest.\" Id. (emphasis supplied). In this case, the State of Arkansas conditioned detachment on an election in which a majority of voters favor detachment. See Ark. Code Ann. 6-13-1504(3). It imposed a residence requirement consistent with the purpose of the election -- to confirm support for detachment in the territory to be detached. Given the purpose of the election, it would not make sense to allow persons to vote who reside outside the territory to be detached. It is beyond dispute ''that the States have the power to require that voters be bona fide residents of the relevant political subdivision.\" Dunn v. Blwnstein, 405 U.S. 330, 343-44 (1972). See Holt, 439 U.S. at 68-69 (\"[O]ur cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders.\"); Page 5 of 14 Carrington v. Rash. 380 U.S. 89, 91 (1965)(\"Texas has unquestioned power to impose reasonable residence restrictions on the availability of the ballot.\"). C. Rational Basis Review. Since the individual PCSSD board member have no constitutional right to vote on detachment, the question before this Court is whether the detachment statute is rationally related to .a legitimate governmental objective. Holt, 439 U.S. at 70; Burdick, 504 U.S. at 433. In Hol!, persons residing in Holt. an unincorporated area adjoining Tuscaloosa, Alabama, sought a declaration that a state statute was unconstitutional because it allowed Tuscaloosa to exercise police powers in Holt. They argued that the extraterritorial exercise of police powers violated the Due Process and Equal Protection Clauses because Holt residents were denied the right to vote in Tuscaloosa elections. Holt, 439 U.S. at 62-63. In determining the appropriate standard of review, the Supreme Court first distinguished cases such as Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969). where the challenged statute \"denied the franchise to individuals who were physically resident within the boundaries of the govern.mental entity concerned.\" Id. at 68. It then recognized a State's power to impose reasonable residence requirements. Id. at 68- 69. Finally, the Supreme Court concluded that the State's power to impose reasonable residence requirements meant that the residents of Holt had no right to vote in Tuscaloosa elections. Id. at 70. Since there was no fundamental right at stake. it held that the statute in question was subject to rational basis review. Id. The Supreme Court went on to uphold the statute under that standard. Id. at 75. In Burdick, supra. the Supreme Court clarified the standard to be applied in a challenge to a state election law. That case involved a challenge to Hawaii's prohibition on write-in voting Page 6 of 14 based on the First and Fourteenth Amendment. Id. 504 U.S. at 430. The court first noted that not every burden on the right to vote must be subject to strict scrutiny. Id. at 432. It explained: Election laws will invariably impose some burden upon individual voters. Each provision of a code, \"whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects -- at least to some degree -- the individual's right to vote and his right to associate with others for political ends.\" Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections are operated equitably and efficiently. See Brief for Petitioner 32-37. Accordingly, the mere fact that a State's system \"creates barriers .. . tending to limit the field of candidates from which voters might choose ... does not of itself compel close scrutiny.\" Bullock v. Carter, 405 U.S. 134, 143 (1972); Anderson, supra, at 788; McDonald v. Board of Election Cornm'nrs of Chicago, 394 U.S. 802 (1969). Id. at 433-34. The court then addressed the question of when strict scrutiny would apply. It stated: A court considering a challenge to a state election law must weigh \"the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate\" against \"the precise interests put forward by the State as justifications for the burden imposed by its rule,\" taking into consideration \"the extent to which those interests make it necessary to burden the plaintiffs rights.\" Id., at 789; Tashjian, supra, at 213-214. Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to \"severe\" restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance.\" Norman v. Reed, 502 U.S. , (1992). But when a state election law provision imposes only \"reasonable, nondiscriminatory restrictions\" upon the First and Fourteenth Amendment rights of voters, \"the State's important regulatory interests are generally sufficient to justify\" the restrictions. Anderson, supra, at 788; see also id., at 788-789, n. 9. Id. at 434. The Court went on to uphold Hawaii's prohibition on write-in voting applying Page 7 of 14 rational basis review. Id. at 441. The detachment statute should likewise be upheld based on rational basis review. For example, the California Supreme Court addressed this identical situation in the context of county government in Bd. of Supervisors v. Local Agency Formation Comm'n, Bd. of Supervisors v. Local Agency Formation Comm'n, 13 Cal. Rptr. 2d 245, 838 P.2d 1198, 3 Cal. 4th 903 (1992). In that case, the California Supreme Court rejected an equal protection challenge to California Government Code 57103. That code provision allowed unincorporated areas of a county to incorporate into a city ( detach from the county) following an election among only residents of the proposed city (the territory to be detached). Id., 3 Cal 4th at 908. County residents residing outside the territory to be detached alleged that 57103 violated the Equal Protection Clause because, although they would be impacted by detachment, it denied them the right to vote on detachment. In determining the standard ofreview, the California Supreme Court applied the flexible test described in Burdick. Id. 3 Cal 4th at 914. It noted that county residents had no right to vote on detachment because counties \"are mere creatures of the state and exist only at the state's sufferance.\" Id. As a result, the court found that \"individual interests in voting are much attenuated by the state's plenary power to oversee and regulate the formation of its political subdivisions, and the same power entitles the state to identify as differing in degrees the interests of those who may vote under 57103 and those who may not.\" Id. The court concluded that \"the essence of this case is not the fundamental right to vote, but the state's plenary power to set the conditions under which its political subdivisions are created. For that reason, the impairment of the right to vote is insufficiently implicated to demand the application of strict scrutiny.\" Id. at Page 8 of 14 3 Cal. 4th at 918 (emphasis supplied). See Wit v. Berman, 306 F.3d 1256, 1259 (2nd Cir. 2002)(following Burdick and applying rational basis standard to a residence requirement). The court then looked to whether 57103 was rationally related to a legitimate governmental objective. It concluded that 57103 was rationally related to its stated objective of encouraging orderly growth and development stating: The act accommodates competing local governmental and private interests ... The election merely asks the affected residents to confirm that they desire selfgovernment To deny the Legislature the authority to let the potentially incorporating territory's voters have the final say in the matter would be to lessen political participation, not increase it. We do not believe that result is required by our federal or state Constitutions. Id. 3 Cal. 4th at 923. Accordingly, the California Supreme Court upheld the constitutionality of 57103. The detachment statute should likewise be upheld.2 The key case relied upon by the individual PCSSD Board members is Kramer v. Union - Free School Dist. No. 15, 395 U.S. 621 (1969). They argue the strict scrutiny applies simply because the state decided to hold an election, and indeed, taken out of context, some language from Kramer appears to support their argument. See Cipriano v. City of Houma, 395 U.S. 701 , 704 (citing Kramer, 395 U.S. at 629 n.11).3 However, the Supreme Court in Kramer explained 2The Florida Supreme Court reached the same result in a factually similar case. In City of Long Beach Resort v. Collins, 261 So.2d 498 (Fla. 1972), it rejected an equal protection challenge to Florida House Bill No. 5288 which permitted the consolidation of several municipalities and unincorporated areas upon a favorable vote in only the unincorporated areas. 261 So. 2d at 499. The Florida Supreme Court summarily rejected an equal protection challenge by noting that the municipalities were all created by acts of the Legislature and concluding, \"This was the prerogative of the Legislature which has life and death powers over municipalities which are created, modified and can be abolished by the Legislature.\" Id. 261 So. 2d at 500. 3Cipriano may be distinguished on the same grounds as Kramer. It also involved a statute that \"grant[ ed] the right to vote in a limited purpose election to some otherwise qualified voters and denie[d] it to others . . . \" 395 U.S. at 704. Decided the same day as Kramer, the court in Page 9 of 14 that strict scrutiny \"is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not.\" 395 U.S. at 629 (emphasis supplied). Thus, while Kramer involved a state's discrimination against some bona fide residents of the relevant political subdivision, the present case involves the state's identification of the relevant political subdivision. See Dunn, 405 U.S. at 343-44. The Supreme Court in Kramer noted the difference stating: Appellant agrees that the State may impose reasonable citizenship, age, and residency requirements on the availability of the ballot. [citations omitted]. The sole issue in this case is whether the additional requirements of 2012 -requirements which prohibit some district residents who are otherwise qualified by age and citizenship from participating in district meetings and school board elections -- violate the Fourteenth Amendment's command that no State shall deny persons equal protection of the laws. Id. at 625-26 (emphasis by court). Therefore, Kramer involved a discriminatory residence requirement, whereas the detachment statute does not discriminate among residents. Kramer holds that discriminatory residence requirements are subject to strict scrutiny, and this is consistent with Burdick and Holt. The Supreme Court in Burdick stated that rational basis review only applied to \"reasonable, nondiscriminatory restrictions.\" 504 U.S. at 434. The Supreme Court in Holt distinguished Kramer because it involved a discriminatory residence requirement. It stated, \"The challenged statute in [Kramer] denied the franchise to individuals who were physically resident within the geographic boundaries of the governmental entity concerned.\" Holt, 439 U.S. at 68. In this case, no residents of the territory to be detached are denied the right to vote -- nonresidents are denied Cipriano stated that strict scrutiny applied \"if a challenged statute grants the right to vote in a limited purpose election so some otherwise qualified voters and denies it to others.\" 395 U.S. at 704. Page 10 of 14 the right to vote. Accordingly, Kramer does not require strict scrutiny of the detachment statute. See Columbia River Gorge United v. Yeutter, 960 F.2d 110, 115 (9th Cir. 1992) (\"The equal protection clause, however, is not violated when a geographic area is singled out for different treatment. The Supreme Court has held that 'there is no rule that counties, as counties, must be treated alike; the Equal Protection Clause relates to equal protection of the laws between individuals rather than between areas.\"' ( quoting Griffm v. County School Bd. of Prince Edward County. 377 U.S. 218, 230 (1964)(intemal quotation omitted))). D. Conclusion. The individual PCSSD board members have no constitutional right to vote on detachment. Hunter, 201 U.S. at 178. As a result, the detachment statute must be upheld if its is rationally related to a legitimate governmental objective. See Holt, 439 U.S. at 68-69; Burdick, 504 U.S. at 434. In this case, the State of Arkansas decided to conduct an election to test a community's support for detachment, and it logically limited the vote to those residing in the territory to be detached. This was a legitimate exercise of the State's power and should be upheld. Accordingly, the individual board members' equal protection claims should be dismissed. III. Impact on Desegregation. If the voters confirm their support for detachment in the September 16, 2003 election, the State Board of Education will order the creation of a new school district in Northeast Pulaski County and appoint a Board of Education for the district. See Ark. Code Ann. 6-l 3- 1505(b )(1 ). Before any transfer of power, property or territory to the new district, the newly appointed board must intervene in this case and agree to such orders as necessary to ensure no Page 11 of 14 negative impact on desegregation. See Ark. Code Ann. 6-13-1505(b)(l). Thus, the detachment statute has a built in mechanism to ensure no negative impact on desegregation and does not violate Section IL L. of the Settlement Agreement. Once appointed by the State Board of Education, the Board of Directors of the new district cannot exercise any power over their schools unless and until authorized by this Court. See Wright v. Council of the City ofEmpori~ 407 U.S. 451 (1972). Even so, this Court does not have authority to grant the PCSSD the relief sought -- enjoining the September 16, 2003 election -- or to otherwise prevent the State Board of Education from creating the new district. See Ross v. Houston Ind. School Dist., 583 F.2d 712, 716 (5th Cir. 1978)(\"The district court exceeded the ambit of its discretion when it enjoined WISD's ability to maintain its corporate existence or to pursue those of its organizational rights under state law that do not involve the independent operation of a portion ofHISD as WISD.\"). Rather, when and if the time comes, the issue before this Court will be the \"proper role [of the new district] in the desegregation of the county system.\" Stout v. Jefferson County Bd. of Educ., 466 F.2d 1213, 1214 (5th Cir. 1972). The proper role of the new district will be \"essentially a factual determination in any particular case.\" Wright, 407 U.S. at 470. The precise role that may be requested by the board of the new district cannot be determined at this time, since the board has yet to be appointed. As a result, it would be inappropriate at this time to propose solutions to the concerns raised by the PCSSD. At a minimum, however, the PCS SD and new district should be prepared for an orderly transfer of control upon the PCSSD being declared unitary. This means that the new district will need funding and personnel. It also means that the new district should assume control to the extent Page 12 of 14 practicable before the PCSSD becomes unitary. To the extent the Bollen Intervenors can speak for the future board of the new district, they want to express their sincere desire to work in good faith with the PCSSD and the other parties to reach an agreement in the best interest of all children in Pulaski County. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors BY:~ f_. 9--~, ~ oiu:c. Fendley, Jr . Page 13 of 14 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 7220 l Page 14 of 14 EXCERPT FROM TRANSCRIPT OF PUBLIC STATUS CONFERENCE April 19, 1989 (Docket No. 1179A) Special Master Aubrey Mccutcheon Speaking Pages 21-231 1These page numbers may not correlate with the actual transcript. They are based on a copy of the transcript that had been scanned and converted to a WordPerfect document. Bollen Intervenors Exhibit 1 to Response Brief is not the limit of their responsibility to implement a constitutional desegregation plan. So, there is no reason for me to recommend disapproval of the settlement, I am recommending its approval. I am recommending, however, that the state not be dismissed from the case until they have fulfilled all of their responsibilities under the settlement. I am further recommending to the U.S. District Court that even though the court re-dedicates the millage as requested by the parties in the settlement, that those re-dedications be conditional upon the parties fulfilling their obligations under the settlement and under any court orders that arc issued to alleviate the conditions of segregation that still exist. And the obvious reason for that is that we do not want to have the court re-dedicate the millage and have the general public have to pay more money to the schools, only to find out that the schools are not fulfilling their obligations under the desegregation orders of the court, and then the school districts go back to the public and have to ask for additional monies. So, we are recommending that the court 21 make the re-dedication of millages conditional upon the satisfaction by the districts of their obligations under the agreement, the settlement agreement, as well as the other court orders. I am also recommending to the court with respect to the settlement that the language in the settlement not be treated as imposing an absolute restriction on the consideration of any particular type of school, whether it be magnet, interdistrict school, consolidation, anything else. That the language in the settlement agreement that refers to the sovereignty and independence of the districts be considered just that, language which acknowledges the current status, but does not in any way infringe on the court's jurisdiction to determine whether or not there ought to be a merger of certain functions for the purpose of being more cost effective and more desegregative and a wiser use of the spending of the money. $120 million is a lot of money, and we ought to see to it that it is spent wisely and carefully, along with any other monies that are spent by the school districts as a part of their implementation of the desegregation 22 responsibilities. There has been a lot of talk about grandfathering. There has been a lot of talk about neighborhood schools. I don't know of any definition in a school desegregation case of neighborhood schools, and I don't find one in the plans that have been submitted. I do find much language, some of which I have referred to previously, indicating that we ought to seek stability, we ought to seek predictability and continuity of assignments, which means we ought to have feeder patterns, we ought to have attendance zones, we ought to make it possible for pupils to go to school together if they live on the same street, that ought to be possible. And one way it is possible is through a concept which I will be recommending regarding the pairing of certain schools and certain grade levels. But with respect to the grandfathering and the attendance zones and the neighborhood schools, I can tell you that the plans submitted by the Little Rock School District are in some portions incomprehensible on those three topics. In other sections, they are so inconsistent that 23 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER THE BOLLEN INTERVENORS' RESPONSE TO RECEIVED AUG 11 2003 OFACEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT The Bollen Intervenors for their Response to the PCSSD's Fourth Motion to Enforce Settlement Agreement state: 1. As to paragraph 1, the Bollen Intervenors admit that the PCSSD's Board of Directors, in their official capacities, are parties to this action. The Bollen Intervenors deny that the PCS SD Board of Directors are parties to this case in their individual capacities, and their claims should be dismissed for the reasons set forth in the Bollen Intervenors' Motion to Dismiss and the accompanying brief which are hereby incorporated by reference. The Bollen Intervenors affirmatively assert that the PCSSD lacks standing to assert the constitutional claims advanced by the individual PCSSD board members. 2. As to paragraph 2, the Bollen Intervenors' Response to the PCSSD's Statement of Page 1 of 6 Material Facts is hereby incorporated by reference. 3. The Bollen Intervenors admit the allegations contained in paragraph 3 of the PCSSD's motion. 4. The Bollen Intervenors admit that this Court has continuing jurisdiction over the State of Arkansas to enforce compliance with the 1989 Settlement Agreement. They deny that the July 14, 2003 action of the State Board of Education violates any provision of the 1989 Settlement Agreement. 5. The Bollen Intervenors deny the allegations contained in paragraphs 5, 6 and 7 of the PCSSD's motion. The Bollen Intervenors affirmatively assert that the Consent Decree should be modified, if necessary, to allow creation of a new school district in Northeast Pulaski County. 6. The Bollen Intervenors admit that, if voters approve detachment in the September 16, 2003 election, the Board of Directors for the new district must intervene in this case and \"obtain any and all court orders or other relief necessary to ensure that the detachment will not cause the state or any affected school district to be in violation of any orders of the court or consent orders or decrees entered into by the parties with regard to the desegregation plan.\" Ark. Code Ann. 6-13-1505(b)(2). The Bollen Intervenors deny the remaining allegations contained in paragraph 8 of the PCSSD's motion. 7. Th.e Bollen Intervenors deny the allegations contained in paragraphs 9, 10, 11 and 12 of the PCSSD's motion. 8. As to paragraph 13, the Bollen Intervenors admit that detachment will marginally increase the percentage of African-American students in the remaining PCSSD. They deny that Page 2 of 6 detachment will \"artificially accelerate the evolution of the PCSSD to a majority black school district.\" 9. The Bollen Jntervenors admit that Newsweek recently recognized Mills University Studies High School as the twentieth \"best\" in the country. They deny the remaining allegations contained in paragraph 14 of the PCSSD's motion. 10. The Bollen Jntervenors deny the allegations contained in paragraphs 15 and 16 of the PCSSD's motion. They affirmatively assert that the new district will seek to retain teachers currently employed in schools slated for detachment and believe it is highly unlikely that all of the approximately 475 teachers will seek new positions in the remaining PCSSD. 11. The Bollen Intervenors deny the allegations contained in paragraphs 17, 18 and 19 of the PCSSD's motion. 12. The Bollen Jntervenors admit that detachment will result in the PCSSD losing approximately 6500 students. They deny the remaining allegations contained in paragraph 20 of the PCSSD's motion. 13. The Bollen Jntervenors admit that the PCSSD's current population density per square mile is approximately 25 students per square mile. They admit that the feasibility study indicated that the population density of the new district would be 53 students per square mile. The Bollen Intervenors deny the remaining allegations containing in paragraph 21 of the PCSSD's motion. 14. The Bollen Intervenors state that the State Board of Education's July 16, 2003 order speaks for itself, and deny the allegations contained in paragraph 22 of the PCSSD's motion to the extent inconsistent therewith. They deny the remaining allegations contained in Page 3 of 6 paragraph 22 of the PCSSD's motion. The Bollen Intervenors affirmatively assert that the parties' 1989 Settlement Agreement is the Consent Decree. This Court may modify the Consent Decree without the agreement of the parties under the circumstances described in Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367 (1992). If approved by a majority of voters in the September 16, 2003 election, the creation of the new district will constitute changed factual circumstances justifying modification of the Consent Decree. 15. The Bollen Intervenors admit that this Court's jurisdiction is limited to monitoring and enforcing (including modifying as necessary) its Consent Decree. They deny the remaining allegations contained in paragraph 23 of the PCSSD's motion. 16. The Bollen Intervenors deny that a \"case or controversy'' exists at this time. They affirmatively assert that this case is not ripe for adjudication for the reasons set forth in their Motion to Dismiss and the accompanying brief, which are hereby incorporated by reference. 17. The Bollen lntervenors' memorandum brief accompanying this Response is hereby incorporated by reference. WHEREFORE, the Bollen Intervenors pray that the PCSSD's Fourth Motion to Enforce Settlement Agreement be denied; that, if necessary, the Consent Decree be modified to accommodate the creation of the proposed new district by detachment from the PCS SD; that they be awarded their costs and attorneys' fees expended herein; and that they be awarded all other just and proper relief to which they may be entitled. Page 4 of 6 Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for the Bollen Intervenors BYJhnC:. ~~-~fr Fendley, Jr. Page 5 of 6 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 11, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHNW. WALKER,P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-34 72 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 3 23 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 6 of 6 e !. IN THE UNITED STATES DISTRICT COURT 1 ., EASTERN DISTRICT OF ARKANSAS t WESTERN DIVISION :1l.:.::=: . ------- LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. RECEIVED AUG 1 3 2003 DESEGREaiWCE OF ON MONITOR/NQ NOTICE OF JOINDER The Joshua Intervenors for their notice of joinder, state: -- ----- PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. The Joshua Intervenors have reviewed the forth motion of the PCSSD to enforce settlement agreement, the statement of material facts and memorandum in support of motion. Premises considered, the Joshua Intervenors hereby give notice of their joinder within and adoption of these pleadings of the PCSSD dated July 24, 2003 . 439291 -v1 Respectfully submitted, JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 (501) 374-3758 FAX: (501) 374-4187 / ,,,,,.---. , /7:h_ ( I ,;,(;, : / / _? By ~ I/ - ' ~ W. Walker - Bar No. 64046 Attorney Joshua Intervenors d CERTIFICATE OF SERVICE On August /..L~o03, a copy of the foregoing was served via U.S. mail on each of the following : Mr. M. Samuel Jones III Wright, Lindsey \u0026amp; Jennings LLP 200 W. Capitol, Suite 2300 Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 439291-v1 2 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Scott Smith General Counsel Arkansas Department of Edudation #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Mike Wilson 602 W. Main Street Jacksonville, AR 72076 hn C Fendley, Jr. M~J~. Fe~dley, Jr. P.A. Jo Drive 51 Wingatke AR 72205 Little Roe , 439291-v1 3 This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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MOBILE: 501-350-2573 OFFICE: 501-907-9797 CLAY FENDLEY ATTORNEY AT LAW JOHN C. FENDLEY, JR. P.A. 51 WINGATE DRIVE LITTLE ROCK., AR 72205 August 5, 2003 The Honorable William R. Wilson, Jr. United States District Court Eastern District of Arkansas 600 West Capitol A venue Little Rock, Arkansas 72201-3325 HAND-DELIVERED RE: LRSD v. PCSSD NO. 4:82CV00866WRW Dear Judge Wilson: 0 : ~ E-MAIL: fendley l@alltel.net FAX: 501-907-9798 RECEIVED AUG 5 2003 OFFICE OF DESEGREGATION MONITORING Enclosed please find a Motion to Intervene and accompanying brief which I, along with Mike Wilson and Will Bond, have filed today on behalf of Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker. The motion arises out of the PCSSD's Fourth Motion to Enforce Settlement Agreement. It is our understanding that a hearing on the PCSSD's motion has been scheduled for August 18, 2003. We respectfully request that our intervention motion be considered at that hearing as well. 1bank you for your time and attention to this matter. Sincerely, cc: All counsel The Honorable J. Thomas Ray IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 5 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY AND SUEANN WHISKER MOV ANTS/INTERVENORS MOTION TO INTERVENE Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker for their Motion to Intervene state: 1. The Movants move to intervene in this case pursuant to Fed. R. Civ. P. 24(a). 2. The Movants have an interest in this Court's resolution of the PCSSD's Fourth Motion to Enforce Settlement Agreement. The Movants seek to create a new school district in northeast Pulaski County by detaching territory from the PCSSD through the process set forth in Ark. Code Ann. 6-13-1501 through 1505 (Michie Supp. 2002). In accord with that process,' 1The election will be the fourth step in the process established by Ark. Code Ann. 6- 13-1501 through 1505. The Movants initiated the process by commissioning an independent feasibility study. Next, they gathered petition signatures and submitted them to the State Board of Education, along with additional information required by statute. Third, on July 14, 2003, the State Board of Education held a hearing on the petition, found it complied with the detachment statute and voted to order an election. Page 1 of 4 the State Board of Education on July 16, 20032 ordered an election to be held September 16, 2003 so that voters residing in the proposed new school district may vote on whether to detach from the PCSSD. If a majority of voters favor detachment, the State Board of Education will order the creation of the new district. See Ark. Code Ann. 6-13-1505(a). In its Fourth Motion to Enforce Settlement Agreement, the PCSSD argues that detachment will violate the Court's Consent Decree arising out of the parties' 1989 Settlement Agreement and asks the Court to order the State Board ofEducation to rescind its July 16, 2003 order and to stop the September 16, 2003 election on detachment. The Movants have an interest in seeing that the election go forward as a necessary part of the detachment process established by Ark. Code Ann. 6-13- 1501 through 1505. 3. If this Court grants the PCS SD the relief it seeks, it will as a practical matter - impair or impede the Movants' ability to establish an independent school district in northeast Pulaski County by the process established by Ark. Code Ann. 6-13-1501 through 1505. The new district cannot be created without the election that the PCSSD seeks to stop. See Ark. Code Ann. 6-13-1505(a). 4. The Movants' interest is not adequately represented by the existing parties to this case. 5. The Movants' memorandum brief submitted in support of this motion is hereby incorporated by reference. 6. The Movants' proposed Motion to Dismiss the PCSSD's Fourth Motion to 2Although the hearing was July 14, 2003, the State Board of Education did not actually issue its order until July 16, 2003. Page 2 of 4 Enforce Settlement Agreement and the accompanying brief are attached hereto as Exhibit A and B, respectively. WHEREFORE, the Movants pray that they be granted leave to intervene and all other just and proper relief to which they may be entitled. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants B:Yiimc. ~t-~,~ Fendley, Jr. Page 3 of 4 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Finn Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION UTILE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUE ANN WHISKER MOTION TO DISMISS PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker (hereinafter the \"Bollen Intervenors\") for their Motion to Dismiss the PCSSD's Fourth Motion to Enforce Settlement Agreement state: 1. The Bollen Intervenors seek to create a new school district in northeast Pulaski County by detaching territory from the PCSSD through the process set forth in Ark. Code Ann. 6-13-1501 through 1505 (Michie Supp. 2002). In accord with that process, 1 the State Board 1The election will be the fourth step in the process established by Ark. Code Ann. 6- 13-1501 through 1505. The Bollen Intervenors initiated the process by commissioning an independent feasibility study. Next, they gathered petition signatures and submitted them to the State Board of Education, along with additional information required by statute. 'Third, on July 14, 2003, the State Board of Education held a hearing on the petition, found it complied with the detachment statute and voted to order an election. Page 1 of 4 Exhibit A of Education on July 16, 20032 ordered an election to be held September 16, 2003 so that voters residing in the proposed new school district may vote on whether to detach from the PCS SD. If a majority of voters favor detachment, the State Board of Education will order the creation of the new district. See Ark. Code Ann. 6-13-1505(a). 2. In its Fourth Motion to Enforce Settlement Agreement, the PCS SD argues that detachment will violate the Court's Consent Decree arising out of the parties' 1989 Settlement Agreement and asks this Court to order the State Board of Education to rescind its July 16, 2003 order and to stop the September 16, 2003 election on detachment. 3. Also in the PCSSD's Fourth Motion to Enforce Settlement Agreement, individual PCSSD board members claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in - the September 16, 2003 election. See PCSSD's Motion, ,r 9. 4. This Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because their claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Fourth Motion to Enforce Settlement Agreement should be dismissed. 2 Although the hearing was July 14, 2003, the State Board of Education did not actually issue its order until July 16, 2003. Page 2 of 4 WHEREFORE, the Bollen Intervenors pray that the PCSSD's Fourth Motion to Enforce Settlement Agreement be dismissed; that they be awarded their costs and attorneys' fees expended herein; and that they be awarded all other just and proper relief to which they may be entitled. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants Page 3 of 4 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Finn Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon IO 10 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL PISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, MARTHA WHATLEY AND SUEANN WHISKER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS THE PCSSD'S FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT I. Ripeness. This Court must presume that it lacks jurisdiction \"unless 'the contrary appears affirmatively from the record.\"' Bender v. Williamsport Area School Dist., 475 U.S. 534, 546 (1986) (quoting King Bridge Co. v. Otoe County, 120 U.S. 225,226 (1887)). \"It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.\" Bender, supra, at 546, n. 8 (quoting Warth v. Seldin, 422 U.S. 490, 517-518 (1975)). The PCSSD fails to allege facts demonstrating that its Fourth Motion to Enforce Settlement Agreement is ripe for adjudication. \"The basic rationale of the ripeness doctrine is 'to prevent the courts, through avoidance Page I of 6 Exhibit B of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties.'\" National Right to Life Political Action Committee v. Conner, 323 F.3d 684, 692 (8th Cir. 2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). Consistent with this rationale, \"courts deciding whether a dispute is ripe should consider (1) the hardship to the plaintiff caused by delayed review; (2) the extent to which judicial intervention would interfere with administrative action; and (3) whether the court would benefit from further factual development.\" Id. Each of the three factors weighs in favor of a finding that the PCSSD's motion is not ripe. First. the PCSSD will suffer no hardship by delaying review until after the September 16. 2003 election. The detachment statute requires this Court's approval before detachment may actually take place. See Ark. Code Ann. 6-13-1505(b)(2). Consequently. the PCSSD will not suffer any harm before this Court has an opportunity to resolve the issues raised in its Fourth Motion to Enforce Settlement Agreement. Next, this Court granting the relief sought by the PCSSD would substantially interfere with administrative action taken by the State Board of Education. The State Board of Education ordered an electio.n based on its finding that the Bollen Intervenors satisfied the requirements of the detachment statute. The PCSSD's request that the State Board of Education be directed to rescind its order would, if granted, directly interfere with the State Board of Education's action taken pursuant to state law. Page 2 of 6 Finally, this Court could benefit from further factual development, in that the Court needs to wait and see whether the voters approve detachment. If they do not, the PCSSD's motion will be rendered moot. It is well-settled that \"[a] claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.\"' Texas v. United States, 523 U.S. 296, 300 (1998)(quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). The PCSSD's Fourth Motion to Enforce Settlement Agreement is not ripe for adjudication because the alleged harm is contingent upon voter approval of detachment in the September 16, 2003 election ordered by the State Board of Education. Accordingly, this Court lacks jurisdiction to hear the motion, and it should be dismissed. II. Individual Board Member Claims. The PCSSD may argue that a live controversy exists based on the constitutional claims made by individual PCSSD board members. In their individual capacities, they claim that the detachment statute denies them due process and equal protection because only those residing in the territory to be detached will be permitted to vote in the September 16, 2003 election. See PCSSD's Motion, ,r 9. However, this Court does not have jurisdiction to decide these claims as a part of the present case for two reasons. First, this Court's remedial authority is limited to interpretation and enforcement1 of its Consent Decree. Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997). In that case, this Court (the Honorable Susan Webber Wright) enjoined a strike by the PCSSD's teachers. The teachers 1Enforcement includes modification of the Consent Decree based on changed factual circumstances. See Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367,388 (1992). Page 3 of 6 appealed, and the Eighth Circuit noted that the Consent Decree does not address the teachers' right to strike and reversed holding, \"The jurisdiction of the District Court to enforce [the Consent Decree] does not include the authority to resolve other disputes among the parties or to adjust their legal rights and responsibilities arising from other sources.\" Id. Similarly, the individual board members' constitutional claims have nothing to do with the Consent Decree. They allege that the detachment statute denies them due process and equal protection because they cannot vote in the detachment election. The Consent Decree simply does not address who should be permitted to vote in a detachment election. Therefore, this Court does not have jurisdiction to address the constitutional claims being asserted by the individual board members. Second, this Court lacks jurisdiction over the constitutional claims of the board members because they are not parties to this case in their individual capacities. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-44 (1986)(individual school board member sued in his official capacity lacks standing to appeal grant of declaratory judgment against school district); Doe v. Claiborne County, Tenn., 103 F.3d 495, 511 ((5111 Cir. 1996) (individual school board members cannot act under of color of state law as required for liability under 1983 ); Ark. Code Ann. 6-13-620 (establishing the power and duties of school boards). To pursue their individual claims, the board members must file a separate case. ill. Conclusion. In sum, this Court lacks jurisdiction over both the PCSSD's claims based on the Consent Decree and the individual board members' claims based on the U.S. Constitution. The Court has no jurisdiction over the PCSSD's claims because the PCSSD's alleged harm (detachment) is Page 4 of 6 contingent upon a majority of voters approving detachment, and therefore, the PCSSD's claims are not ripe for adjudication. The Court has no jurisdiction over the individual board members' claims because the claims do not implicate the Consent Decree and because the board members, in their individual capacities, are not parties to this case. For these reasons, the PCSSD's Motion to Fourth Enforce Settlement Agreement should be dismissed. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Attorneys for Movants Page 5 of 6 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHNW. WALKER,P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. GREG BOLLEN, JAMES BOLDEN, RECEIVED AUG 5 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MARTHA WHATLEY AND SUEANN WHISKER MOV ANTS/INTERVENORS MEMORANDUM BRIEF IN SUPPORT OF MOTION TO INTERVENE Greg Bollen, James Bolden, Martha Whatley and Sue Ann Whisker (hereinafter collective referred to as the \"Bollen Intervenors\") move to intervene in this case pursuant to Fed. R. Civ. P. 24(a). Fed. R. Civ. P. 24(a) requires the Court to permit intervention where (1) the party seeking intervention claims an interest relating to the property or transaction which is the subject of the action, (2) the party seeking intervention is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, and (3) the interest of the party seeking intervention is not adequately represented by existing parties. For the reasons set forth in the accompanying Motion, the Bollen Intervenors satisfy each of these requirements and should be granted leave to intervene. It may be argued that the State of Arkansas adequately represents the interest of the Page 1 of 3 Bollen Intervenors in this case. However, the State cannot be expected to litigate this case with the same commitment to detachment as the Bollen Intervenors. Toe State's commitment will be tempered by other considerations, such as the financial impact on the State. The Bollen Intervenors, on the other hand, have expended an incredible amount of time and money to create the new district, and they want detachment as soon as possible so that they may take control of their childrens' educational future. \"The burden resting on intervenors to show that their interests are not adequately represented by existing parties is a 'minimal' one.\" LRSD v. PCSSD, 738 F.2d 82, 84 (8th Cir. 1984). This burden is more than met in the present case. Respectfully Submitted, Greg Bollen, James Bolden, Martha Whatley \u0026amp; Sue Ellen Whisker Mike Wilson 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 (501) 982-9411 John C. Fendley, Jr. John C. Fendley, Jr. P.A. 51 Wingate Drive Little Rock, AR 72205 (501) 907-9797 Page 2 of 3 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people via handdelivery on August 5, 2003: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Finn Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark A. Hagemeier Assistant Attorney General Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon 1010 W. Third Street Little Rock, AR 72201 Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Page 3 of 3 FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS A 11r, 6 2003 IN THE UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION JAMES W. McCORMACK, CLER!\u0026lt; By:. _______ -===:-:::-= DEP CLER~ LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS On July 25, 2003, Pulaski County Special School District (PCSSD) filed a Fourth Motion to Enforce Settlement Agreement and for Allied Relief (Doc. No. 3760). If any party wishes to file a response to this motion, it should do so by 12:00 p.m., noon, Monday, August 11 , 2003 . On August 5, 2003, Greg Bollen, James Bolden, Martha Whatley, and Sue Ann Whisker filed a Motion to Intervene (Doc. No. 3766). If any party wishes to respond to the \"Bollen Intervenors\"' (as they styled it) motion, this response should also be filed by 12:00 p.m., noon, Monday, August 11 , 2003. A hearing to address PCCSD's Motion to Enforce is schedule for 10:00 a.m., Monday, August 18, 2003. The Motion to Intervene by the \"Bollen Intervenors\" will also be addressed at this hearing. Lawyers for each party, including the Arkansas Department of Education, 1 are 1In an Order entered January 18, 1991 (Doc. No. 1418), Judge Wright dismissed the State/ADE as a party to this action \"pursuant to the terms of the parties' settlement agreement.\" However, the Settlement Agreement expressly provides \"that the Court may retain jurisdiction to 7 6 8 directed to be present at the hearing no later than 9:30 a.m .. Each party must have at least one representative, other than its lawyers, present at the hearing. IT IS SO ORDERED this 6th day of August, 2003. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE Wifil:ULE58AN~~C~ ON ~3 BY ... ~ address issues regarding implementation of the Plans.\" Attachments A, B, C, and D to the Settlement Agreement (Doc. No. 1174). Solidifying this position, in an Order entered August 18, 1993 (Doc. No. 1947), Judge Wright emphasized that, while the State/ADE was no longer a formal party in this action, \"it is the law of the case that the Court retains jurisdiction to ensure that the parties, including the State, comply with the terms of the settlement agreement as well as the settlement plans.\" EDWARD L. WRIGHT ( 1903 -1977) ROBERT S. LINDSEY (1913-1991) ISAAC A. SCOTT . JR. JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW GORDON S. RATHER. JR . ROGER A. GLASGOW C . DOUGLAS BUFORD. JR. PATRICK J. GOSS ALSTON JENNINGS, JR. JOHN R. TISDALE KATHLYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY Ill LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T. COLEMAN JAMES J. GLOVER EDWIN L . LOWTHER, JR. WALTER E. MAY GREGORY T. JONES H. KEITH MORRISON BETTINA E. BROWNSTEIN WALTER McSPADDEN JOHN D. DAVIS JUD'Y SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse 600 West Capitol Avenue, Suite 360 Little Rock, Arkansas 72201 200 WEST CAPITOL AVENUE SUITE 2300 LITTLE ROCK, ARKANSAS 72201 -3699 (501) 371 - 0808 FAX (501) 376-9442 www . wlj .com OF COUNSEL ALSTON JENNINGS RONALD A. MAY BRUCE R. LINDSEY JAMES R. VAN DOVER Writer 's Direct Dial No. 501 -212-1273 mjoDes@wlj .com August 8, 2003 KIMBERLY WOOD TUCKBR RAY F. COX , JR . TROY A. PRICE PATRICIA SIEVERS HARRIS KATHRYN A. PRYOR J. MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL D. BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C. TAD BOHANNON KRISTI M. MOODY J. CHARLES DOUGHERTY M. SEAN HATCH J. ANDREW VINES JUSTIN T. ALLEN MICHELLE M. KAEMMERLING SCOTT ANDREW IRBY PATRICK D. WILSON REGINA A. SPAULDING UaasodMJJ11(11CdcebebrelbeUl1icdSIMO hfl:li ud Tndt!mvt O~ RECEIVED AUG 11 2003 OFRCEOF DESEGREGATION MOKITORIMG Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: Enclosed is a courtesy copy of PCSSD' s Board Members Motion to Intervene In Their Individual Capacities, together with supporting memorandum brief. The originals have been filed and the parties served. Thank you for your consideration in this matter. MSJ:ao Encls. cc/w/encls.: 439660-vl Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP Honorable J. Thomas Ray (via hand delivery) All Counsel of Record (via U.S. Mail) Mr. Ray Simon (via U.S. Mail) Mr. Scott Smith (via facsimile and U.S. Mail) Mr. Will Bond (via facsimile and U.S. Mail) Mr. Mike Wilson (via facsimile and U.S. Mail) Mr. John C. Fendley, Jr. (via facsimile and U.S. Mail) Mr. Timothy Gauger (via hand delivery) Mr. Mark Burnett (via U.S. Mail) IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MILDRED TATUM, GWEN WILLIAMS, PAM ROBERTS, JEFF SHANEYFELT and DON BAKER MOV ANTS/INTERVENORS PCSSD BOARD MEMBERS MOTION TO INTERVENE IN THEIR INDIVIDUAL CAPACITIES The following PCSSD Board Members, for their Motion to Intervene state: 1. Mildred Tatum, Gwen Williams, Pam Roberts, Jeff Shaneyfelt, and Don Baker, are duly elected members of the Board of Directors of the Pulaski County Special School District. They are also residents in different areas of the PCSSD and taxpayers contributing to the funding of the PCSSD. 2. In such capacity, these board members are defendants in this action in their official capacities. 3. In their proposed Motion to Intervene, certain individuals (the Bollen Intervenors) residing in the Jacksonville area assert that the claims of the foregoing board members relating to equal protection of the law must be brought in a separate action. 438898-v1 4. To cure any such technicality, these board members, who are already defendants in this action, seek to intervene for the limited but substantial purpose of enforcing their individual rights to equal protection guaranteed by the United States and Arkansas Constitutions. Specifically, these intervenors contend that they will be denied equal protection of the law as they are precluded by state law from voting in the \"detachment election\" scheduled for September 16, 2003, even though they are all registered voters in the PCSSD, taxpayers in the PCSSD, have or have had children or grandchildren in the PCSSD schools, and otherwise have a vested interest in the operation, governance and vitality of the PCSSD as a whole. 5. Such an intervention will foster principles of judicial economy since these board members are already parties to this action in their official capacities and allowing their limited - intervention to assert their individual rights will neither prolong this action nor contribute to any judicial inefficiencies. 6. Your individual directors therefore request permission to intervene in their individual capacities for the limited but substantial purpose of protecting their rights to equal protection as guaranteed by the United States and Arkansas Constitutions. 7. As part of their request for intervention, these individual school board members request permission to adopt that certain motion, statement of material facts and brief in support of motion all filed by the PCSSD on July 25, 2003 . 8. Further, these intervenors observe that they and those situated similarly to them are further being denied equal protection of the law since they are required to pay the expenses of the special election for detachment pursuant to Ark. Code Ann. 6-14-118. Thus, both as 438898-v1 2 individual taxpayers and in their capacity as directors, your intervenors are required to pay for the expenses of an election in which they are denied the right to vote. WHEREFORE, Mildred Tatum, Gwen Williams, Pam Roberts, Jeff Shaneyfelt and Don Baker pray for an order of this Court allowing their limited intervention as described above and authorizing their adoption of the previous motion, statement of material facts and brief all as filed by the PCSSD on July 25, 2003. 438898-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 3 CERTIFICATE OF SERVICE On August 1. 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 438898-v1 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 4 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL -DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED AUG 11 2003 OFRCEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS MILDRED TATUM, GWEN WILLIAMS, PAM ROBERTS, JEFF SHANEYFELT and DON BAKER MOV ANTS/INTERVENORS MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE Mildred Tatum, Gwen Williams, Pam Roberts, Jeff Shaneyfelt and Don Baker adopt in their individual capacities the motion, statement of material facts and brief filed by the PCSSD on July 25, 2003. Equal Protection Considerations As the Supreme Court of the United States recently observed, federal courts presented with an appropriate controversy bear a duty to ensure that voting procedures adopted by a state \"are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.\" Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 530 (2000). Furthermore, \"[b]ecause our democracy was founded on the principle that 'the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights,' our courts vehemently protect every citizen's right to vote, carefully and 439246-v1 meticulously scrutinizing any alleged infringement.\" Charfauros v. Board of Elections, 249 F.3d 941, 951 (9th Cir. 2000) (quoting Reynolds v. Sims, 377 U.S. 533, 562 (1964)). The equal protection clause of the fourteenth amendment guarantees fundamental rights to every person, including the right to vote, and these rights may not be impaired for reasons that are arbitrary or discriminatory. Id. This freedom has been rooted in our justice system for at least . a century, for the Supreme Court long ago recognized that the right to vote was a \"fundamental political right.\" Wick Yo v. Hop.kins, 118 U.S. 356, 370 (1886). Nor does the right to the franchise end with the mere right to cast a ballot; there is in addition a \"constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.\" Dunn v. Blumstein, 405 U.S. 330, 336 (1972). It is true that some restrictions on these rights have been permitted, but only when \"no discrimination is made between individuals\" in ways that violate the constitution. Carrington v. Rush, 380 U.S. 89, 91 (1965); when the state acts to disenfranchise, the limitations must be \"appropriately defined and uniformly applied.\" Dunn, 405 U.S. at 343. Imposition of Election Costs The rights of the intervenors to equal protection of the law are further compromised and vitiated by the operation of Ark. Code Ann. 6-14-118, which requires the school district to reimburse the County Board of Election Commissioners for the entire cost of any school election. Section (b) further states: At all annual or special elections, the board of directors of each district shall pay the expenses of the election out of the school fund. 439246-v1 2 Your intervenors submit that both in their role as individual taxpayers and patrons and in their official capacity as directors, they are denied the equal protection of the laws when they are denied the right to vote in an election the cost of which they must pay. Violation of Substantive Due Process Rights The immeasurable impact of the planned election on the individual Board members' . rights as voters also constitutes a violation of their right to substantive due process in matters that impinge on important rights. \"[A]n election is a denial of substantive due process if it is conducted in a manner that is fundamentally unfair.\" Bennett v. Yoshina, 140 F.3d 1218, 1226 (1998). Of course, there is a distinction between \"garden variety\" election irregularities and error that \"undermines the integrity of the vote.\" Id. The ultimate question is whether the election is fundamentally unfair . Id. and n.3 (citing as one example voter reliance on established procedures followed by a change in procedures that results in significant disenfranchisement). There is no precise definition of \"fundamentally unfair,\" but the Court is free to draw on precedent and the particular facts of the case to determine whether voters have been disenfranchised in a way that is arbitrary or capricious, and yet substantial. The Inconsistent Statutory Scheme Your intervenors further note that the companion statutory scheme to the detachment statutes does not deny equal protection of the laws. For instance, if consolidation of districts is proposed via an election, Ark. Code Ann. 6-13-1404(a)(2) requires that: A majority of the qualified electors in the affected districts votes to approve consolidation of the affected districts into a resulting district or districts pursuant to a valid election.. . . Likewise, if a proposal to annex school districts via an election is presented, then Ark. - Code Ann. 6-13-1403(a)(2)(A) requires that: 439246-v1 3 A majority of the qualified electors in the affected district or districts vote to approve the annexation of an affected school district or districts to a receiving district or districts .... Thus, it is only under the circumstances of a \"detachment\" that the State has sought fit to restrict the grant of the franchise, a matter which your intervenors submit the State cannot properly do and comply with the equal protection clauses of the Arkansas and United States .Constitutions. Conclusion lntervenors pray that their motion to intervene be granted and for all proper relief. 439246-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 ..... ) Special 4 CERTIFICATE OF SERVICE On August .e., 2003, a copy of the foregoing was served via hand delivery on Mr. Timothy Gauger, Assistant Attorney General, 323 Center Street, Suite 200, Little Rock, Arkansas 72201. via facsimile and U.S. Mail on the following: Mr. Scott Smith General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. John C. Fendley, Jr. John C. Fendley, Jr., P.A. 51 Wingate Drive Little Rock, AR 72205 and via U.S. Mail on the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 439246-v1 Mr. Mike Wilson Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 5 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 Mark_A. Hagemeier Assistant Attorney General M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 2000 NationsBank Bldg. 200 W. Capitol Little Rock, AR 72201 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell P.O. Box 17388 Little Rock, AR 72222-7388 Mike Wilson 602 W. Main Street Jacksonville, AR 72076 John C. Fendley, Jr. 51 Wingate Drive Little Rock, AR 72205 THE ATTORNEY GENERAL STATE OF ARKANSAS MIKE BEEBE RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING Direct dial: (501) 682-3643 E-mail: mark.hagemeier@ag.state.ar.us August 8, 2003 Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon \u0026amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Marshall Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, suite 1895 Little Rock, AR 72201 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 Re: Little Rock School District v. Pulaski County Special School District, et al. USDC No. LR-C-82-866 323 Center Street Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 FAX (501) 682-2591 Internet Website http://www.ag.state.ar.us/ Dear Counselors and Ms. Marshall: Please find enclosed the State's Request for Entry of Appearance and its Response to PCSSD'S \"Fourth Motion to Enforce Settlement Agreement\" and for \"Allied Relief' which we filed today. MAH Enclosures cc: Mr. Scott Smith Very truly yours, ~.~. MARK A. HAGEM~ Assistant Attorney General IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MOMITORlNG PLAINTIFF DEFENDANTS RESPONSE TO PCSSD'S \"FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT\" AND FOR \"ALLIED RELIEF\" The Arkansas Department of Education submits this response to the PCSSD's1 \"Fourth Motion to Enforce Settlement Agreement and for Allied Relief.\" For the reasons discussed below, PCSSD's motion should be dismissed. The PCSSD seeks an order that would squelch an election in which voters residing in the Jacksonville area will have the opportunity to vote on whether a proposal to create a new school district in the area should proceed. The election in question was approved by the State Board of Education pursuant to state statutes that govern the creation of new school districts by \"detachment\" of territory from existing districts.2 Those statutes require an election as a step in the process by which such a school district might be created. Furthermore, those statutes contain provisions that guarantee that the creation of such a district will not come to final fruition if 1 The opening paragraph of the motion states that the motion is brought by the PCSSD, its Board, and certain members of its Board \"in both their official and individual capacities.\" In this response the ADE will refer to all of the purported movants collectively as the \"PCSSD\" unless the context requires otherwise. 2 PCSSD asserts -- erroneously -- in Footnote 2 of its Brief that the statutes governing the creation of school districts by detachment \"appl[y] by definition only to the PCSSD and to no other school district.\" Arkansas Act 1397 of 2003 (a copy of which is attached as Exhibit A) amended Ark. Code Ann. 6-13-1502(d) so that, in addition to school districts that now or in the future serve 15,000 to 20,000 students, the detachment process might also be invoked in school districts that now or in the future encompass an area of 700 square miles or more. Presently, in addition to the PCSSD, the Waldron School District in Scott County encompasses an area in excess of750 square miles. doing so will hamper or impede desegregation efforts of school districts (such as the PCSSD) that operate under court-ordered or court-approved desegregation plans. The PCSSD ignores the possibility that the voters of the Jacksonville area might reject the proposed detachment, an occurrence that would put an end to the detachment process. 3 Instead, the PCSSD filed the instant motion in this Court seeking an order \"directing the State Board of Education to rescind its order of July 16, 2003, and cancel its authorization for an election.\" Additionally, the PCSSD filed an action in state court, which is still pending, that seeks essentially the same relief. See Exhibit 21 to PCSSD's Motion. As is discussed below, the PCSSD's motion is premature at best and should be dismissed on ripeness grounds. Under the applicable state statutes, no district can be created by detachment unless and until electors residing in the territory of the proposed new district vote in favor of the proposed detachment. If the voters reject the proposed detachment on September 16, that will be the end of the matter -- the PCSSD's motion will become moot and this Court will not have to consider the various factual and legal matters presented in the PCSSD's motion. Alternatively, a vote for the proposed detachment by electors on September 16 will not end the matter either. Under this circumstance, an appointed board of the proposed new district would be required by state law to come to this Court and secure any and all orders necessary to ensure that the creation of the new district will not undermine the districts' desegregation efforts. If this new Board ultimately does not seek and successfully obtain all such orders, for whatever reason, the new district will also not come into being. While the day may come when this Court is squarely and concretely presented with a proposed \"detachment\" district to consider, that day has not yet arrived, and indeed, it may never arrive. Furthermore, if PCSSD prevails in its pending 3 The State, unlike the PCSSD, does not presuppose or assume how the matter will fare at the election. 2 state court action on the state-law grounds it has asserted there, the motion filed in this Court will become moot. As regards the PCSSD's request for \"allied relief' -- a claim that the detachment statutes violate due process and equal protection because certain electors who reside in the PCSSD are not, under the statutes, eligible to vote on the proposed detachment -- this Court lacks _jurisdiction to grant such relief as well. The claim for \"allied relief' does not involve an allegation of an alleged breach of the Settlement Agreement, and in any event none of the purported movants has standing to assert the \"allied relief' claim in the context of this case. A. The PCSSD's Motion is Not Ripe for Review and Should Be Dismissed As noted, the relief sought is an order directing the State Board to \"rescind\" its order authorizing an election on the question of detachment, which would have the effect of canceling the upcoming election. The basis for this requested relief is the PCSSD's claim that the ultimate creation of the school district cannot happen in such a manner as will not violate some provision of the Settlement Agreement and/or impede their desegregation efforts. The PCSSD's motion should be dismissed because it is not ripe. The detachment process is governed by state law, specifically Ark. Code Ann. 6-13- 1501 et seq. The statutory scheme sets up a multi-step process, and the election is but one necessary step. Section 6-13-1503(2) provides that the detachment process can be initiated, as it was here, by a petition presented to the State Board of Education. If the State Board believes that the petition meets the statutory requirements, the State Board may, as it did here, \"order an election on the proposition of detachment to be held at the next annual school election or general election.\" Ark. Code Ann. 6-13-1504(b)(l). Such an election, however, does not end the process. Ark. Code Ann. 6-13-1505 further provides as follows: 3 6-13-1505. Creation of district. (a) If all the requirements of this subchapter are met and a majority of the votes are cast for the proposition, the State Board of Education shall order the creation of the new school district. (b)(l) At the time the order creating the district is made, the state board shall appoint a board of seven (7) members for the new district to serve until the next regular election of members, when a board of directors shall be elected in compliance with Arkansas law. (2) Following the entry of the order creating the new district and the appointment of a board of directors for the new district but prior to the transfer of any assets, territory, property, liabilities, duties, or responsibilities, any new district created by detachment from an existing district that is a party to any court-ordered desegregation plan shall petition the court having jurisdiction in the desegregation matter and obtain any and all court orders or other relief necessary to ensure that the detachment will not cause the state or any affected school district to be in violation of any orders of the court or any consent orders or decrees entered into by the parties with regard to the desegregation plan. - (Emphasis added). The statutory scheme therefore makes it clear that (a) if the voters reject the proposed detachment, the process comes to an end; and (b ), if the voters approve the proposed detachment, a district with an appointed Board will be created but that \"district\" will have no assets, territory, property liabilities, duties or responsibilities unless and until that Board successfully secures from this Court all orders necessary to ensure that the creation of the district will not cause the State or any other school district to be in violation of any orders, consent orders or decrees entered in this case. If the Board of the proposed detached district is not successful in that regard, the process ends as well. By seeking to quash the election before it occurs, the PCSSD has \"jumped the gun\" because before any new district can be created, and before the statutory process can go forward, the voters must approve the proposed detachment at an election. 4 \"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.\" Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,377 (1994) (internal citations omitted). The \"ripeness\" doctrine, which flows both from the Article III \"case or controversy\" jurisdictional requirement and from prudential considerations, requires federal courts to determine whether a particular dispute is \"fit for judicial resolution\" and whether the parties would \"experience hardship if the court withheld consideration of the case's merits.\" American Canoe Assoc. v. E.P.A., 289 F.3d 509, 512 (8th Cir. 2002) (citing Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). Though it has been said that the ripeness doctrine is something of a \"cantaloupe,\" see Nebraska Public Power v. MidAmerican Energy, 234 F.3d 1032, 1038 (8th Cir. 2000), the Eighth Circuit has noted that the \"touchstone\" of a ripeness inquiry is \"whether the harm asserted has 'matured enough to warrant judicial intervention.\"' Vogel v. Foth and Van Dyke Associates, Inc., 266 F.3d 838, 840 (8th Cir. 2001) (quoting Paraquad, Inc. v. St. Louis Housing Authority, 259 F.3d 956, 958 (8th Cir. 2001)). The Eighth Circuit has also made it clear that \"a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.\" National Right to Life Political Action Committee v. Connor, 323 F.3d 684, 693 (8 th Cir. 2003). (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)). Here, the PCSSD seeks to derail the process under which a new school district might be created out of its existing territory. It is clear that such an \"injury,\" if any, to the PCSSD \"rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all,\" 5 namely, an election outcome favorable to detachment. While the PCSSD claims that the new district, if created, would harm its ability to comply with its desegregation obligations, it has not articulated any concrete harm that the election, by itself, will cause it to suffer. Unless and until at least the election is held and an outcome favorable to detachment occurs, PCSSD's claims are plainly not ripe for review, and they should be dismissed. B. This Court Lacks Jurisdiction Over The Request For \"Allied Relier' As regards the PCSSD' s request for \"allied relief,\" this Court lacks jurisdiction to grant such relief and that part of the PCSSD's motion should be dismissed as well. The \"allied relief' claim does not purport to be brought to address any alleged breach of the Settlement Agreement, and as PCSSD candidly concedes in the brief in support of its motion, \"the current jurisdiction of the District Court is 'only' to enforce the Settlement Agreement.\" (See PCSSD Brief at p. 23).4 If the claims for \"allied relief' are to be brought at all, such claims would have to be presented in a new, separate lawsuit, not as a \"motion\" filed in this case. Indeed, tacitly conceding this point, the PCSSD has already purported to bring this same claim in the separate action it has initiated in state court. See Exhibit 21 to PCSSD's motion. Further, the PCSSD, its Board, and its Board members in their \"official\" capacities lack standing to assert the rights of electors residing within the district. The PCSSD and its Board are not \"voters\" (see Conway School District v. Wilhoit, 854 F.Supp. 1430 (E.D. Ark. 1994)) and, in their \"official capacities,\" the Board members' claims must be treated as if they are brought by the PCSSD Board and the District itself, if at all. The PCSSD's effort to sidestep this issue by purporting to bring the motion on behalf of certain board members in their \"individual\" 4See Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997). Ironically, the Knight case involved an effort by the PCSSD to stretch the District Court's jurisdiction beyond its proper bounds after efforts in other forums to spare the PCSSD from dealing with a teachers' strike failed. 6 capacities is equally unavailing. Even if in some long-buried pleading in this case there is some reference to some particular member of the PCS SD Board as a party in an \"individual\" capacity, the course of proceedings in this case plainly demonstrates that the members of the PCSSD Board were parties in their \"official\" capacities only. No relief of any kind was ever awarded as against any Board member in his or her \"individual\" capacity. See Bender v. Williamsport Area School Dist., 475 U.S. 534 543 (1986).5 The Board members have not moved to intervene in this action in their \"individual\" capacities so as to present their claim for \"allied relief,\" and there is no authority for such intervention in any event. For the foregoing reasons, the PCSSD's \"Fourth Motion to Enforce Settlement Agreement and for Allied Relief' should be dismissed. 5 Indeed, if public school funds are being used by the PCSSD to, in part, pay for legal representation for board members for legal work that benefits the Board members personally, i.e., to pursue claims brought by Board members in their \"individual\" capacities to vindicate their personal rights under the due process or equal protection clauses, a serious question arises as to whether the PCSSD is improperly expending public school funds. See Ark. Constitution, Art. 14, 2 and 3. Ark. Code Ann. 6-13 -623 authorizes governing authorities of school districts to spend public school funds to employ legal counsel, but only to \"defend\" claims asserted against the governing authority \"or against any member thereof, by virtue of his actions in connection with his duties as such member.\" This statue would not appear to authorize the PCSSD board to employ legal counsel and use public school funds to initiate legal proceedings that purport to vindicate board members' personal rights in those members ' \"individual\" capacity. 7 Respectfully Submitted, MIKE BEEBE Attorney General #95019 Senior Assistant Attome General MARK A. HAGEMEIER #94127 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 Attorneys for Arkansas Department of Education CERTIFICATE OF SERVICE I, Mark A. Hagemeier, certify that on August _8_, 2003, a copy of the foregoing document was be served by first-class U.S. mail, postage prepaid, on the following person(s) at the address(es) indicated: M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings LLP 200 W. Capitol, Suite 2300 Little Rock, AR 72201-3699 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon \u0026amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 8 Mike Wilson 602 W. Main Street Jacksonville, AR 72076 John C. Fendley, Jr. 51 Wingate Drive Little Rock, AR 72205 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 72076 . Mark A. Hagemeier 9 ...., 1 2 3 4 Stricken language would be deleted from and underlined language would be added to the law as it existed prior to this session of the General Assembly. State of Arkansas 84th General Assembly Regular Session, 2003 Act 1397 of 2003 HOUSE BILL 2608 5 By: Representative Bond 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 For An Act To Be Entitled AN ACT TO AMEND THE LAWS PERTAINING TO CREATION OF A SCHOOL DISTRICT BY DETACHMENT; AND FOR OTHER PURPOSES. Subtitle AN ACT TO AMEND THE LAWS PERTAINING TO CREATION OF A SCHOOL DISTRICT BY DETACHMENT. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: SECTION 1. Arkansas Code 6-13-1502(d), concerning minimum area and 22 attendance requirements for creation of a school district by detachment, is 23 amended to read as follows: 24 (d) This subchapter shall apply only to school districts that in the 25 school year immediately preceding the detachment had an average daily 26 membership of at least fifteen thousand (15,000) students but not more than 27 twenty thousand (20,000) students, or the school district encompasses a total 28 area of seven hundred (700) square miles or more, now or in the future. 29 30 31 32 33 34 35 36 SECTION 2. EMERGENCY CLAUSE. It is found and determined by the General Assembly of the State of Arkansas that the Arkansas Constitution requires the State of Arkansas to provide a general, suitable, and efficient system of public education; that procedures to ensure a general, suitable, and efficient system of public education need to be in place prior to the beginning the 2003-2004 school year; and that this act is immediately necessary to allow school districts and the electors of those districts ... llllillllllllllllllllllllll~IIIIIII :\"! 'EXHIBIT 03081003KAS f.,. ,,, ~, l 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 - 36 As Engrossed: H4/2/03 HB2608 sufficient time to organize and plan to for a general, suitable, and efficient system of education in the district prior to the beginning of the 2003-2004 school year. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto. Isl Bond APPROVED: 4/15/2003 2 03082003KAS1250.TW0018 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. REQUEST FOR ENTRY OF APPEARANCE RECEIVED AUG 11 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS Senior Assistant Attorney General Timothy G. Gauger hereby requests that the Court enter his appearance as additional counsel of record for the Arkansas Department of Education for the limited purpose of this Court's consideration and disposition of the PCSSD's \"Fourth Motion to Enforce Settlement Agreement and for Allied Relief.\" Respectfully Submitted, MIKE BEEBE Attorney General Senior Assistant orney General MARK A. HAGEMEIER #94127 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 CERTIFICATE OF SERVICE I, Mark A. Hagemeier, certify that on August .8.__, 2003, a copy of the foregoing document was be served by first-class U.S. mail, postage prepaid, on the following person(s) at the address( es) indicated: M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings LLP 200 W. Capitol, Suite 2300 Little Rock, AR 72201-3699 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Mike Wilson 602 W. Main Street Jacksonville, AR 72076 John C. Fendley, Jr. 51 Wingate Drive Little Rock, AR 72205 Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon \u0026amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Will Bond Bond \u0026amp; Chamberlin 602 W. Main Street Jacksonville, AR 7207 6 2 This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.\u003c/dcterms_description\u003e\n \n\n\u003c/dcterms_description\u003e \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n \n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n\u003c/item\u003e\n\u003c/items\u003e"},{"id":"bcas_bcmss0837_1758","title":"Brief regarding Pulaski County Special School District (PCSSD), response to petition to de-annex territory from PCSSD, motion to enforce settlement agreement, motion and support for allied relief, Arkansas Department of Education (ADE) project management tool, and Office of Desegregation Management report.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["57 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eBefore the Arkansas State Board of Education, brief of the Pulaski County Special School District (PCSSD) in re: petition to de-annex territory from the Pulaski County Special School District (PCSSD); District Court, fourth motion to enforce settlement agreement and for allied relief; District Court, memorandum brief in support of fourth motion to enforce settlement agreement and for allied relief; District Court, statement of material facts; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool; District Court, notice of hearing; District Court, notice of filing, Office of Desegregation Management report, ''Update on the Redesign of Harris Elementary School and the Rezoning of Schools in the Sherwood Area of the Pulaski County Special School District (PCSSD)'' This transcript was create using Optical Character Recognition (OCR) and may contain some errors. I P. 03 RECEIVED BEFORE THE ARKANSAS STATE :SOARD OF EDUCATION JUL 1 O 2003 OFFICEOF DESEGREGATION MONITORING IN RE: PETITION TO DE-ANNEX TERRITORY FROM THE PCSSD BRIBf OF TiiE PCSSD Introduction Prior to tl1e hearing held on June 9, 2003, the PCSSD submjtted its \"Analysis\" of how the detachment, if approved, would negatively impact desegregation not only in the PCSSD but in tllc LRSD and the NLRSD as well. For -lbe _convenience of the Board another ~PY is included as Exhibit 1. The PCSSD asked ti1at 1hat document be made-part of the record and its cssenLial conclusions will only be briefly reiterated here . Although the PCS SD believes that its previously submitted Analysis is more than ample reason to deny Lhe petition for detachment, there is an even more fundamental reason why it should be turned down. SifI!Ply stated, the 1989 Settlement Agreement with the State, to which this -Board is a signatory i precJudes such a usurpation of the District's sovereignty and independence. 428241-vl The Settlement Agreement Provision Section II J of_the 1989 comprehensive Settlement Agreement states in its entirety: The State, Joshua and LRSD recognize that PCSSD and NLRSD are independent, sovereign desegregating school districts -operating pursuant to court orders and agreements and chat this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation .activities with the LRSD and others. [emphasis added] ----- - -- -- -- ~ Thi, language, whiCh remain, operative, was notsome idle boileiplaie.or filler. Indeed, as we will explain .further, it was not part of the original agreement between the State, LRSD and Joshua but was only negotiated after.the State had first reached .agreement with the LRSD and then turned its attention toward securing agreement from the PCSSD and the NLRSD. Further, thcr.e was a real and immediate specter of consolidation which prompted this _] negotiated language which, whHe it survived the legislative and judicial approval process, came I under attack from many legislators, commentators and in editorials. Indeed, for those who did not personally participate in or who do not clearly recall this historic process, a brief chronology might be useful. 1982 1985 1985 Late 1988 January 12, 1989 January 31, 1989 4?.8244-vl Not So Ancient History The LRSD sues the State, the PCSSD and the NLRSD successfully seeking consolidation of the three districts in Pulaski County. 9Zl F.2d 1371@ 1376. The Court of Appeals rejects consolidation but orders that the boundary between LRSD and PCSSD be adjusted. 921 F .2d 1371 @ 1377. This boundary adjusLinent caused PCSSD to lose sixteen schools and over one-third of its tax base_ Initial setLlerncntdiscussions are commenced among the State, the LRSD and the Joshua Intervenors. 921 F.2d 1371 @ 1376 . . Senator Jerry Jewell introduces Senate Bill 39 to consolidate the Little Rock, North Little Rock.and _P.ulaski County Special School District schools. Exhibit 2. The State Board, LRSD and Joshua Intervenors reach a proposed seulcment. The State's attorney reports that \"meetings to obtain-t11e agreement of the otl1er _parties are underway today between attorneys and representatives of the State Boar\u0026lt;l, PCSSD aml NLRSD.\" Exhibit 3. 2 i -I vUI.. I February 14, 1989 March 1989 March 3, 1989 March 7, 1989 March 11, 1989 March U, 1989 March 16, 1989 428244-vl The State hires t.lie national law furn of Hogan \u0026amp; Hartson which specialized in school desegregation to advise it concerning desegregation. Exhibit 4. Counsel .for the LRSD delivers a draft of Proposed Settlement Agreement to the State's attorney. This draft does not contain a Section II J. Exhibit 5. The settlement is agreed to by all of the parties. The final version contains Section 11 J. Exhibit 6. It is submined to the legislature for funding. In an editorial discussing the settlement, the. Arkansas Gazette note~: that: \"A key-provision is that the Little Rock, North Little Rock- and Pulaski County School Districts recognize that they remain independent, sovereign desegregating' districts. This could -becon,e an impediment to a countywide consolidation in the future, and if so it is an unfortunate pr.ovision.\" Exhibit 7. The Atkansas Gazette reports that the county district's attorney told the county board that the settlement went through 27 revisions before being made publi~ because of the complexity of the issues. Exhibit 8. .In .explaining .the settlement to the Joint Budget Committee, the State's attorney noted that: \"This agreement. is so fragile that if it starts to unravel in any way, if there's any kind of modification to it, it'.s .going co fall apart and unravel in 100 djffcreht ways.\" In the same articfo, Senator Max Howell noted he djd not wanno vote Jor1he settlement if it meant forever prohibiting consolidation of the three county districts. \"I'm not antagonistic toward the dollars, but I am concerned that I .under.stand the small print.\" Exhibit 9. One starewide commentator, in characterizing Section II J, o.pined that: \"A brazen provision slipped into this settlement at the last minute guarantees there will be no consolidation of the school districts. Surprise!\" Exhibit 10. The Arkansas Senate approves the bill funding the settlement but .idds an amendmenr asking tbe Federal Courts to consider four changes in the seLtlcment including: \"Disapproval of language that would rctiin the autonomy of the three Pulaski County districts-.\" As Senator Max Howell stated: \"I would hope tbt: Court woulil be aware that we hl the Legislature feel the folks who caused this should not continue to be in control of the situation.\" Exhibit 11. 3 I l ' II March 18, 1989 March 24, 1989 March 31, 1989 December 11, 1989 December 12, 1990. The press reported that: \"Legislators have expressed concern that the provision would forever bar the State from merging the three districts, ancl the State Education Department's attorney told them Monday that McCutcheon (the _special Master) apparently shared that concern. n Exhibit 11. Press reports described II J as one of.the \"key\" provisions of the settlement. Exhibit 12. Mr. Herschel Friday writes the attorneys for the parties noting that: \"During the debate which preceded the v.ote to fund the settlement in this case, l was repeatedly questioned on whether changes requested by the legislature could be made in the settlement. A copy of the requested changes is enclosed for your ready reference. I agreed to follow through to see that the legislative requests were auly considered by .the .parties and to use my best efforts in this regard. . .. Will you please discuss these requests with your clients so that we can meet in the near future and address these matters .\" Exhibit 13. A copy of the requested changes, which included Section II J, is attached~ Exhibit 14 . Counsel for the AEA informs.Mr. Friday that they object to removing a.ny of the items from the settlement agreement. Exhibit 15. The District Court purports to approve the settlement agreement but only after imposing certain modifications. 726 F.Supp. 1544, 1549. The Court of Appeals reverses the District Court, ruling that the Settlement Agreement should hav.e been .approved as written by the parties. 971 F.2d 160 @ 164, 165. It should thus be clear that Section n J. was a key component of the settlement for which the PCSSD (as well as the NLRSO) separately negotiated. The reasons are clear, Not only was the PCSSD guarding against consolidation, but also any new usurpation of its territory. facilities and assets similar to the appropriation (albeit by judicial order) that occurred in the .early phases of the school case. While it is clear that many in the legislature 42$M4-vl 4 and those \"commentin_g on tbe scene\" opposed Section II J., the fact remains that it is an l integral part of the Settlement Agreement and retains full force and vitality today. In his June 4, 2003 letter, the Attorney General appropriately discussed the fact that while \"successor district\" language was included in the settlement agreement as respects the LRSD, it noted thar no such language is presented as regards the PCSSD or the NLRSD. As lhe Attorney General explained: All of this suggests that either (a) the parties simply did not anticipate that a \"successor\" district might be created from territory that was formerly within1he PCSSD, or (b) the parties specificaHy intended that there would not be any such \"successor\" district created under any circumstances, or that any successor district would not be a parcy to the Settlement Agreement. Subparagraph (b) of course is the correct outcome because of the presence of Section II J. On the san1e page and same footnote the Attorney General further noted that: Logic suggests, however, that a group of individual schools could not so easily extricate themselves from federal court supervision (and court-imposed obligations) in a desegregation case by merely \"detaching\" themselves from a schooJ district under supervision, at least not without the consem of all parties to the case and the Court overseeing the litigation. (Emphasis supplied). The Attorney General notes in his last footnote that: In this parcicular case, the parties with standing to object would be the Sr.ate it.o;clf, the three Pulaski County districts, and the 1osbua and Knight intervenors. The Potential For New Claims The principal motivation for the State to enter into and subsequently fund the Settlement Agreement was co minimize the dollar cost for its past constitutional violations and to obtain a release -of all claims for .all v.iolations which had occurred prior to execution of the Settlem~nt Agreement. While the State has been subjected to successful .claims by the school districts for 4282411-vl 5 ~ I I departures from the Settlement Agreement, it has, thus far, for over fourteen years, avoided a cbim or contention that .it has violated the constitution or enacted statutes which either prom~\u0026gt;tc segregation or hamper desegregation. 1 However, the statute at issue, by its own legislative language, sets up an interesting dynamic not otherwise present in ATkansas law. As counsel for the Pcpanment of Education and the Attorney General's office have repeatedly pointed out: \"the state board is proh~itcd by law from approving any petition fo1 detachment which hampers, delays or in any manner negative~y affects desegregation efforts of a school district or districts .in this state.\" Even if the Board makes a negative determination on this issue, it is virtually a foregone conclusion that one or another or more of the parties in the school case would contend in Federal Court that the detachment does \"hamper, delay or ... negatively affects desegregation efforts ... \", would seek to hoist the State upon the petard of its own legislation, and, if successful, expose the State to new claims for millions of dollars, an exposure the S1ate avoic.Js if it .properly denies the petition. Indeed, it would appear that the legjsJature had the proscriptions of the Settlement Agreement in mind when it crafted this very narr.ow and rigorous test for detachment. The Settlement Agreement at page 10 states: \"The State will enact no legislation which has a substantial adverse impact on the ability of the [Pulaski] I Districts to desegregate.\" 1 After each legisl:llive session, die ADE invites the PCSSD, as well as the olher Pulaski disu-icrs, to identify aew lc!gislation which the district believes will hamper or negatively affecc its desegregation efforts. The PCSSD duly noted by }ell.er dated April 26, 2002, thaUt believed tile detachment scaruce at issue would negatively -:tffoct it; desegregation efforts. 4282'14-vl 6 Thus, those who might pursue a new claim, where none currently exists, would likely si.multancously argue that the Settlement Agreement itself has been breached, a claim that carries with it not only the potential for new money damages .but substantial legal fees as well. The petitioners are correct that the racial balance tests for the -PCS SD accommodate a growing. black enrollment. However, the racial balance test is only a fraction of the issue involved. By ultimately approving a new school district, the State- will have participated in a process that artificially accelerates the evolution of the PCCSD to a majority black school district. When all three districts become majority black, then the State will argue that its oblig~tion to fund M-to.:M payments will suddenly and abruptly end. (Indeed, a cynic.might wonder if there are those in authority who may have already figured this out.) lf and when this day comes, the financial consequenct;S to the three current districts in this county would be crippling. Thus, to lhc extent that the State endorses steps to hasten and accelerate this day, then perhaps a new round of claims against the Slate would logically follow. The black student population of the PCSSD has grown on average between one-half percent and one percent per year. By accelerating tlle process by 6.5 -percentage points (sec further analysis) in 1hc year of detachment, the State will have \"gained\" approximately 7 .5 years toward the day when M-to-M funding might end. (See 15 years enrollment trend.) The Detachment Statute Constitutes Impermissible Special Local Legislation The Arkansas Constimtion succinctly provides that: \"The legislature shall not pass any local or-special Act\". (Arkansas Constitution Amendment 14). 428244vl 7 I' l As the staff of -the ADE can verify, this statute, by its tcnns, can_only apply to the _PCSSD. No ot:h,er school district in the State meets the quaJifying characteristics of the legislation. Further, there is no plausible .argument that the statute could ever apply to any other school district in Arkansas -in the future. -Bottom line: It was carefully crafted to apply only to the Jacksonville area, cannot apply elsewhere, and as such is impermissible special, local legislation which should not be enforced. Not-All Of The Pai1ies Have Been Consulted_ The Attorney General's letter ofJime 4, 2003 (hereafter-the June 4 letter), strongly urges the Board to seek input from the three school districts in Pulaski as well as Joshua and the Knight Intervenors before determining whether or not .creation of the new district would \"hamper, delay, or in any manner affect 'desegregation efforts of a school district or distrkts in the State.\" While tht'. PCSSD has supplied information to the Board, the -PCSSD is unaware that the Knight Intcrvenors have been solicited for their input. The Focus Of The Petitioner's New Submissions Is Much Too Nan-ow As .the June 4 lctter explains (and even Mr. Fendley's letter quotes the same language), dest:grcgation includes much more than racial balance from school to school. Accordingly, the Board should look nor only at student assignments, but to every facet of school operations including faculty, staff, transportation, extl'acurricular activities and facilities. (June 4 letter at page 2). While the submissions of the petitioners do touch upon student assignment, faculty and somewhat upon transportation, there is no mention of staff (which is also unionized in the PCSSD) or extracurricular activities. This omission alone is sufficient for this Board to 428244-vl 8 I 1 conclude that insufficient information concerning desegregation in the area of staff and extracurricular activities has been presented. While .the supplemental submissions address current enrollments by school, enrolhnents before and after M-to-M and magnet transfers and deployment .of staff at schools, (all under cenain assumptions about which we will write later), the submission is otherwise largely devoid of analysis and specificity, particularly as it relates to specific matters set forth in the PCSSD's \"Analysis\" previously submitted to this Board. '\\, for instance, there is scant mention of the three specialty schools. in th~ southeast portion of Pulaski County, all of which contain programs which were specifically designed for aml gained Court approval for .desegregation. The supplemental filings simply do not contest the PCSSD calculation that approximately 200 students from the area proposed for detachment attended those schools last year. These students are necessary for the continued vitality of these programs, all of which feed to Mills Uniyersity Studies High School, recently recognized as the 201 !, \"best\" high school in the country. }lewsweek, May 2003. (Exhibit 16). Does this Board really want to play a role in undermining one of the most shining success stories in Arkansas .education? el 1 Included as Exhibit 17 is a memor11ndum from Davis Hendricks, the.District Director of Talented and Gifted Programs, prepared the day after the Board's June 9 hearing. The memorandum explains at least two things. First, it shows the extensive array of AP courses currently available at both JacksonviJle High School and North Pulaski High School. It also explains in some detail how the detachment would negatively impact the College Station, .Fuller and Mills progl'ams. 428244-vJ 9 - I While the supplemental submissions do purport to Cl!lculate enrollment in the / \u0026lt;letachment.schools if M-to-M and magnet transfers ended, Lhey singularly do not provide any analysis as to what affect the lack of such transfers would have not only upon the finances of the PCSSD but upon the schools and finances affected in the NLRSD.and .theLRSD. Although the June 4 letter was necessarily fairly general in most respects, it was quite ~pecific as regards certain areas. As the Allorney General opined: (a]ny detachment of a significant amount of territory from the PCSSD could almost certainly be expected to have an \"impact\" on the -PCSSD's ability to comply with its desegregation plan and have an impact on the operation of the Settlement Agreement, including the Agreement's provisjons concerning M.:M students and the Magnet schoolsjh the LRSD. Teacher Deployment As to teacher deployment, the petitioners stake out thena1ve position that the Federal District Court could simply order all the teachers to stay where they are. This assumption ignores the realities of teacher unions, teacher contracts and previous admonitions from the United States Court of Appeals. For instance, the PCSSD successfully enjoined an on-goinJ teacher strike fo .1996. The union appealed to the Federal Court of A.ppeals arguing that the union negotiated contract beLwccn lhc PCSSD and .the Teachers' Union was none of the District Court's business. The Court of Appeals agreed, reversed the District Court ~d explained to the parties that the role of the District Court is to enforce the Settlement Agreement (which is silent as to the master contracts), but not to otherwise interfere with the rights of employees and organizations of employers. 112 F.3d 953 @ 955 . . Petitioners' position is completely silent regarding recognition of a new teacher organization for a new district . .Is this or js this not pan of their proposed calculus? As the.! 428244-vl 10 - - - - - --- - PCSSD knows from prior difficult and n-ying circrunst\u0026gt;nccs, many teacliers prefer working in / a district which reco_gnizes a union. I I e l J The PCSSD \"Analysis\" Revisited Petitioners claim u1at Exhibit 5 in their supplemental submission demonstrates that detachment will not have a negative impact upon the PCSSD. However, even though petitioners purport to have used data obtained from the PCSSD, the PCSSD cannot reconcik its data with chat presented by tne petitioncr.2 For instance, petitioners' Exhibit 5 predicts that the detached school district would have 3,345 elementary students of whom 34.1 % would bt! black. However, the PCSSD .calculates lhat the detached district would have 3,700 elementrtry srudents of wlmm only 32. 7% would be black. (Exhibit 18).. At the secondary level, the petitiom;:rs project 3,750 students of whom 36.6% would be black. While the total number calculated by the PCSSD is similar a.t 3,757, it calculates that ollly 32.4 % of those students would be black. (Exhibit 18). Since the petitioners calculate that the residual PCSSD would be 39 % black, there is a difference of six and one-half percentaie points. Also, while the petitioners project a .total .enrollment of 7,095 students, the PCSSD calculates that the new district would enrolt 7,457 srudents. (Exhibit 18), As for individual schools, the impact upon Clinton Elementary is profound. Detachmem would cause the loss of 124 sLudents and would push Clinton from 55 % black to 60% black. (Exhibit 18). It is required to be no more than 50% black. : The PCSSD once a.ga.iu 1ecommends that these discrepancies be .evaluated by the staff of the ADE. 4282M-vl 11 ) l' -! l e l I As we previously projected, 61 students would leave College-Station reducing its enrollment from 215 .to 159. (Exhibit 18) . This would artificially increase the black population at College Station from the current 55 % to 59 % black. The enrollment at Sylvan Hills Middle School would increase from 878 to 972, the African-American percentage would increase from 39 % to 45 % and the building capacity of 925 would be grossly exceed~d- (Exhibit 18). Court Orders While the petitioners seek to cast doubt upon the over capacity reported for the Sylvan Hills schools, they are either unaware of the fact or.have neglected to inform the Board that as recently as March 25, 2003, the District CoUit noted that: Fur.ther, the Court is jnformed that Sylvan Hills Middle School no Ionger has tho capacity .to .accommodate all 6111 _grade M-to-M students who attended Clintou Interdistrict School through the 5111 grade. Those students should be informed of their opportunity to attend the new middle school in Mawnelle. (Order, Exhibit 19, at page 2.) Accordingly, the PCSSD supplements its previous Analysis and reiterates its point that the displaced students, many of whom are black, who the petitioners submit can \"easily be accommodated at Sylvan Hills\" simply cannot be. Part of the detachment proposal flies in the face of another order entered by the District Court on January 28, 2003. In evaluating and approving the PCSSD plans for the redesign of Harris Elementary School, the Federal Court ruled that: 428244-vl African American students from Brushy Island will not be reassigned to Harris but will continue to attend Cato El~mentary. Cato Elementary student enrollment will.remain 75% Caucasian (white) and 25% African American (black). (Order, Exhibit 20 at page 2.) 12 \\ I l Of course, the petitioners arc excluding the Brushy lsland students from Cato and are leaving them .to he assigned somewhere in the PCSSD. The petitioners say send them to Sylvan Hills but there is no room. The Court has .said they will not be reassigned to Harris. Where can they go? Another aspect of the Court's January order as respects Harris requires the PCSSD to vigorously recruit minority snidents (white) from north of the river for placement at Harris. The Director of Equity and Multicultural Education was ordered to direct this \"intensification\" of.eff 01t. Of course, if most of the PCSSD nonh of the river is allowed to detach, it will render the PCSSD substantially unable to comply with this order. Sylvan Hills Petitioners make some rather astonishing suggestions regarding Sylvan Hills High School. At page 6 of counsel's letter, the following statements are made: Moreover, even assuming a real capacity problem at Sylvan Hills High School, the District Court coo.ld address the problem in a number.of ways to avoid any negative affect on desegregation. One option may be to revise the attendance zones for all of PCSSD's high schools. The ODM reported that the PCSSD has .nor revised its attendance zones in \"many years\" and recommended that it do so. See ODM March 26, 2003, pp. 19 and 21. Another option may be to discontinue the school's specialty program that allows smdents residing outside the attendance zone to attend the school. This program was implemented to increase the African-American enrollment at the school at a tirnc when it was below the minimum of 20 percent. The African-American enrollment at the school in 2002-03 was 35 percent. This calls into question the continuing need for the program to increase African-American enrollment. A rhir4 option may be to build additional classrooms at Sylvan Hills High School. The PCSSD recently addcdnew classrooms at Robinson High.Sc;:hool to address overcrowding at that school. In short, a capacity problem at Sylvan Hills High School can easily be addressed without negatively affecting desegregation. 428244-vl 13 i l I I J, e l As to revisingattendancezones or disestablishing a specialty program, a cardinal rule in desegre_gation is \"if it ain't broke, don't fix ic\". Any effort to disestablish a successful program would .immediately be attacked by Joshua. Moreover, ifthe PCSSD is compelled Lo build .additional classrooms because of the efforts of the pelitioners and the actions of the State, who is going to pay for this construction? The petitioners? The State'? The upshot of petitioners' suggestions is that the \"suggestions\" prove that the detachment would have a negative impact on desegregation in the PCSSD. Further, they ignore the fact lhat .much of the increase in black enroilment at Sylvan Hills is M-to-M students from- the LRSD. To discontinue or ecn diminish the specialty program, affects not only the; PCSSD but the LRSD as well. F..nrollmcnt The foasibility study at page 1 predicts the new district would contain 5,700 students. Alternative IV predicts 6,578. The supplemental submissions (Exhibit 5) predicts the new district will contain approx.imately 7,500 students if transfers cease. The numbers keep growing and growing. While the feasibility study forecasts that the PCSSD would remain .the .second largest district in the State, it is clear that a comparison of petitioners' Exhibit5 to its \"district size\" exhibit would relegate the PCSSD to only the sixth largest district in the State with fewer tban 10,500 students. (Before the Pulaski County school desegregation case was filed, the PCSSD boasted an enrollment of almost 33;000 students and was by far the largest school district h1 the State.) 42.SZ44-vl 14 I e l l ! Such a dramatic reduction in enrollment will undoubtedly require a reduction in force not only among teachers and staff but within the Central Office as well. Such dislocations, heartache and ,car.eer affecting decisions will be unnecessary if this Board finds the petition to be invalid. Further, lhe feasibility study points outthatdensity ofstudents per square mile would improve from 25 in. the current PCSSD to approximately 53 students per square mile- in 'the new dislrict. While the feasibility study boasts that this will irnprnve transportation in the new district, it singularly fails to point out that the current density of 25 students per square mile logically and .necessarily becomes far less in the residual PCSSD. This sets up the real potential for more and longer bus rides, less efficiency and an undoubted ne_gative impact upon desegregation and the district's ability to stem enrollment declines and to attract more students . The Stipulations The M~to-M stipulation and the magnet schools stipulation are just that: Stipulated agreements among all of the parties. Therefore, as a threshold matter, it would seem that the specific written consent of Joshua, the Knight Intervenors, the Norl.h Little Rock School District, the J,irtle Rock School District, the State and the PCSSD would be required before tllese \"agreements\" cm1ld be made operative as to a detaching district. Indeed, as w~ know from the Eig_hth Circuit, a District Coun cannot impose agreements but can only -accept or reject them. 921 .F.2d 1371@ 1388. Further. both stipulations are part of the 1989 Settlement Agreement. It seems log.ical that the Agreement would have to be renegotiated and rc--cxecuted by all of the parties to the case to include the new district. Query, would the re, negotiated agreement then have to be submitted to the next session of the legislature to 428244-vJ 15 . I dctcnnine if !he legislature was Willing l-0 fund tl1i modified agreement? Again, as the Eighth Circuit has taught us, the District Court cannot impose an agreement upon the parties to this case unless they all consent. I Federal-Court An emerging strategy of the petitioners seems to be to shift as muc~ of the process ar,d decision making as possible to the. Federal District Court often re-assuring this 'Board that the Federal Court can do whatever is necessary to 1mpose obligations, agreements and the like. We have previously explained that the District Court is not all powerful. It cannot, for instance, as we have explained, tell teachers where they are going to teach. It cannot create capacity in sehoolswhere11one exist. Indeed, the current jurisdiction of the District Court 'is \"only\" to enforce the -SettlemGnt Agreement (which it has done) and to monitor and enforce the desegregation plans (which it. continues to do). The detachment statute is, in effect, an effort by a State to confer jurisdiction upon a Federal Court. So far as the PCSSD knows, this effort is unprecedented. It is also highly suspect. However, to the extent that the petitioners ,can convince lhis Board that \"the Federal Court will fix it\", it can perhaps win the authorization for an election, presumably hay..c ,a successful election followed by a large street party and then show up onthe District Court's doorstep with a ten page laundry list of issue!i to be decided. This scenario is not likely to result in a very happy District Court judge. 428244-vl 16 I I The PCSSD Would Have To Rezone In no shape, .form or fashion does the proposed detachment auempt to follow current Board member 'zoneboundarics. For instance, Zone 5,. from which Board Member Carol Burgett was elected last year, is largely eviscerated. The detachment would require the residual PCSSD. to constitute new zones some seven years in advance of the next census. Tliis would constitute an unnecessary and unwarranted ~xpense and disruption to the governance of the residual PCSSD. Conclusion For all of the foregoing reasons, this Board should determine that the petition is invalid and decline to aulhorize an e1ection. 428244-vl Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, .Suite 2.300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376:..9442 -- By ----'-=;,.,,\u0026lt;e---.----:...=-r--f=--- cy Special School 17 EDWARD L. WRIGHT (1903-1977) ROBERT S. LINDSEY (1913-1991) WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW ISAAC A. SCOTT, JR. JOHN G. LILE GORDON S. RATHER , JR . ROGER A. GLASGOW C. DOUGLAS BUFORD , JR. PATRICK J. GOSS ALSTON JENNINGS , JR . JOHN R. TISDALE KATHLYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY 111 LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLEST. COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER. JR . WALTER E. MAY GREGORY T. JONES H. KEITH MORRISON BETTINA E. BROWNSTEIN WALTER McSPADOEN JOHN 0 . DAVIS JJJOY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse 600 West Capitol Avenue, Suite 360 Little Rock, Arkansas 72201 200 WEST CAPITOL AVENUE SUITE 2300 LITTLE ROCK, ARKANSAS 72201-3699 (501) 371 -0808 FAX (501) 376-9442 www . wlj. com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R . LINDSEY JAMES R . VAN DOVER Writer's Direct Dial No . 501-212-1273 mjoncs@wlj .com July 25, 2003 R5ElYED JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: KIMBERLY WOOD TUCKER RAY F. COX . JR . TROY A. PRICE PATRICIA SIEVERS HARRIS KATHRYN A . PRYOR J. MARX DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL 0 . BARNES STEPHEN R . LANCASTER JUDY ROBINSON WILBER KYLER . WILSON C . TAD BOHANNON KRISTI M. MOODY J. CHARLES DOUGHERTY M. SEAN HATCH J . ANDREW VINES JUSTIN T. ALLEN MICHELLE M. KAEMMERLING SCOTT ANDREW IRBY PATRICK 0 . WILSON REGINA A. SPAULDING Lia::Dsi=d IO pn,cti be\u0026amp;-e tbe UDilt/ Suta hlt:DI ud Tndt:mvt Olfice Enclosed is a courtesy copy of PCSSD's fourth motion to enforce settlement agreement and for allied relief, together with supporting memorandum brief and statement of material facts . The originals have been filed and the parties served. Thank you for your consideration in this matter. Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP MSJ:ao Encls. cc/w/encls.: d,(__ \\ Honorable J. Thomas Ray All Counsel of Record Mr. Ray Simon Mr. Scott Smith Mr. Will Bond Mr. Timothy Gauger Mr. Mark Burnett IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V . NO. 4:82CV00866WRW . PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED )-c1.,f \\\u0026lt;J JY7uv{_ JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING FOURTH MOTION TO ENFORCE SETTLEMENT AGREEMENT AND FOR ALLIED RELIEF PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The PCSSD for its fourth motion to enforce Settlement Agreement, states: 1. This motion is brought both by the PCSSD and its Board of Directors. The individual directors are named defendants in this action. For purposes of this motion, Directors, Mildred Tatum, Pam Roberts, Don Baker, Jeff Shaneyfeld and Gwen Williams, are moving in both their official and individual capacities because of the equal rights issues asserted herein. 2. This motion is accompanied by a lengthy Statement of Material Facts. The movant respectfully suggests that the reader first examine this Statement for a full and complete context for this motion. 3. On July 14, 2003, the Arkansas State Board of Education purportedly acting - pursuant to Ark. Code Ann. 6-13-1501 , et seq., voted to order an election on September 434830-v1 - 16, 2003, for the purpose of allowing voters in the greater Jacksonville area to consider approval of a ballot measure to detach certain territory from the PCSSD and form a new school district. The statute does not provide for a vote by those residing in other areas of the PCS SD. 4. The statutory scheme, as well as the election which the State has authorized, violates the 1989 Settlement Agreement in this case. This Court has continuing jurisdiction over the State via the Arkansas Department of Education to enforce compliance with the Settlement Agreement. 5. The actions described above violate Section II.J of the Settlement Agreement which states in its entirety: 6. The State, Joshua and LRSD recognize that PCSSD and NLRSD are independent, sovereign desegregating school districts operating pursuant to court orders and agreements and that this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation activities with the LRSD and others. [emphasis added] The above-described actions also violate Section ILL of the Settlement Agreement which states in pertinent part that: The State will enact no legislation which has a substantial adverse impact on the ability of the Districts to desegregate. 7. As the PCSSD will demonstrate, the creation of a \"new\" district as agreed to by the State Board of Education will both \"substantially affect the ability of the district to desegregate\" and will violate Ark. Code Ann. 6-13-1504(b)(2)(b) since the detachment would \"hamper, delay or in any manner negatively affect desegregation efforts\" of the PCSSD. 434830-v1 2 8. The detachment, if successful in the State-authorized scheme, would call upon this Court to recognize a \"new defendant\" in this 20 year old case while the case is in its remedial phase, liability having been long ago established and subsequently settled in the 1989 Settlement Agreement. This Court should not and cannot embark upon such a slippery slope. Unless or until this case ends, the parties have been established, their liability adjudicated, their differences compromised and settled and a new and different entity should not be introduced to this litigation in the remedial phase. 9. The statute is also unconstitutional because it denies due process and equal protection to those patrons in the PCSSD who do not reside in the area proposed in the petition for detachment and therefore are not allowed to exercise their constitutional right to vote upon the issue. Specifically, Directors Tatum, Williams, Roberts, Shaneyfeld and Baker and all others similarly situated are being denied the opportunity to vote upon the detachment question even though each represents a zone of patrons and voters who will be directly and negatively affected if the detachment is successful. Further, each of them will be negatively affected individually if the detachment proves successful. 10. Discreet provisions of orders of this Court would be violated if the detachment proved successful. For instance, this Court noted on March 25, 2003, that: 434830-v1 Further, the Court is informed that Sylvan Hills Middle School no longer has the capacity to accommodate all 6th grade M-to-M students who attended Clinton Interdistrict School through the 5th grade. Those students should be informed of their opportunity to attend the new middle school in Maumelle. (Order, Exhibit 22 to Statement of Material Facts, at page 2.) 3 However, if the detachment proved successful, several hundred students who currently attend Cato and other schools in the area proposed for detachment would, in the eyes of the petitioners, be reassigned to the several Sylvan Hills schools. Simply stated, there is no room for these students, many of whom are black and no feasible alternative exists for reassignment that does not involve a significant bus ride. 11. The detachment, if successful, would also negatively impact this Court's order of January 28, 2003, which stated in pertinent part that: African American students from Brushy Island will not be reassigned to Harris but will continue to attend Cato Elementary. Cato Elementary student enrollment will remain 75 % Caucasian (white) and 25% African American (black). (Order, Exhibit 23 to Statement of Material Facts, at page 2.) The detachment would leave the Brushy Island students in the residual PCSSD but would take Cato from the PCSSD. The petitioners propose that these students be reassigned to Sylvan Hills as well. However, there is simply no room for these mainly black students and they would face a long bus ride somewhere. 12. Sylvan Hills has proven to be a popular destination for M-to-M students from Little Rock. Obviously, the detachment would place all of the Sylvan Hills schools well over capacity. Since the M-to-M stipulation specifies that M-to-M students can only be accepted on a space available basis, it is likely that all current M-to-M students would have to be evicted from Sylvan Hills if the detachment proved successful. 13. The detachment would artificially accelerate the evolution of the PCS SD to a majority black school district, facilitating the State's inevitable argument that, at such a point, 434830-v1 4 - M-to-M funding should end. The State should not be permitted to effect such an artificial change in enrollment percentages. 14. Mills University Studies High School was recently recognized by Newsweekas the twentieth \"best\" high school in the country. This is a remarkable achievement for any Arkansas school. However, if the detachment proves successful, approximately 200 students from the area proposed for detachment would no longer qualify for transfer to College Station, Fuller Middle and Mills. These three schools are among the centerpieces of Plan 2000 and previous desegregation plans and this Court should not tolerate an action that would likely wreck these successful desegregation programs. 15. If successful, the detachment would work a substantial negative impact upon the current employee force in the PCS SD. The PCS SD calculates it would have to undergo a reduction in force of approximately 475 employees. Since seniority controls such a reduction, the PCSSD would be left with an artificially senior teacher corps and with an artificially imposed salary schedule that would be top heavy in the highest paid teachers. Such an outcome would work a substantial financial hardship upon the PCSSD and interfere with its ability to desegregate. 16. Such a reduction in force would also artificially make the residual PCSSD teacher force whiter than it currently is since the PCSSD has been aggressive the past several years in hiring young minority teachers. These would be the first to be laid off in a reduction in force. 17. If the detachment were successful, Clinton Elementary would lose 124 students and would move from being 55 % black to 60 % black. 434830-v1 5 18. College Station would lose 61 students reducing its enrollment from 215 students to 159. This would also artificially increase the black population at College Station from the current 55 % to 59 % black. 19. The enrollment at Sylvan Hills Middle School would increase from 878 to 972. The building capacity is only 925. Even if they could be accommodated, this infusion of students would increase the enrollment from 39 % black to 45 % black. 20. The detachment, if successful, would reduce the student population in the PCSSD to only approximately 10,500 students. It would change it from the second largest district in the State to only the sixth largest district. With a reduction in enrollment of approximately 7,500 students, the PCSSD would be substantially reduced in its capability to send and receive M-to-M students and to send magnet students to the stipulation magnets. 21. The current student density per square mile in the PCSSD is 25 students per square mile. The detachers calculate that the new district would improve this density to 53 students per square mile in the new district. Logically, however, the current density of 25 students per square mile in the current PCSSD would be significantly reduced leading to longer and less efficient transportation of students in the residual PCSSD and likely imposing an artificial and unwarranted busing burden upon black students. 22. The State Board granted the petition and in its subsequent order for elections based its decision largely upon \"the petitioners' willingness to seek, accept, and comply fully with any and all additional orders and requirements that might be imposed by the Federal Court ... \". The PCSSD submits that that which petitioners seek is legally impossible, particularly as respects the agreements entered into in this case. For instance, the M-to-M 434830-v1 6 - stipulation, the magnet stipulation and the 1989 Settlement Agreement are just that. They are agreements entered among the current parties and this Court cannot \"impose\" those agreements upon a new entity. Rather, all of the parties would have to consent and presumably the legislature would have to concur. 23. As the Court of Appeals has explained, the current jurisdiction of this Court is to enforce the Settlement Agreement and to monitor and enforce the desegregation plans. The detachment statute is an effort by a State to confer jurisdiction upon a Federal Court. The PCSSD knows of no precedent for this effort. 24. This motion is brought now because the action of the State Board in authorizing the election has created a clear and current case or controversy. Since the effects of a detachment are palpable and provable, it is respectfully submitted that this Court should exercise its jurisdiction now to end an effort which violates the Settlement Agreement and would work a manifest injury upon the ability of the PCSSD to carry out its Court approved plans and obligations and would have significant adverse outcomes financially and enrollment wise upon the other parties to this case. WHEREFORE, for all of the foregoing reasons, this Court should enter its order finding that the Settlement Agreement has been violated or that the detachment would work an impermissible negative affect upon the PCSSD's efforts to desegregate and comply with Court orders and agreements entered into with the other parties. For all of these reasons, this Court should enter its order directing the State Board of Education to rescind its order of July 16, 2003, and cancel its authorization for an election. 434830-v1 7 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 Att Sc CERTIFICATE OF SERVICE On July 25, 2003, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 434830-v1 8 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roach ell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 Mr. Will Bond 602 W. Main . Jacksonville, AR 72076 Mr. Mark Burnett 1010 W. Third Street Little Rock, AR 72201 434830-v1 9 Mr. Scott Smith General Counsel Arkansas Department of Edudation #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 J IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM BRIEF IN SUPPORT OF FOURTII MOTION TO ENFORCE SETILEMENT AGREEMENT AND FOR ALLIED RELIEF REf,1~0 JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Simply stated, the 1989 Settlement Agreement with the State, to which the State Board of Education is a signatory, precludes any such usurpation of the District's sovereignty and independence, as would result from the detachment the State recently authorized. It is the law of the case that the Court retains jurisdiction to insure that the parties, including the State, comply with the terms of the Settlement Agreement as well as the settlement plans. (Order dated January 13, 1995, at page 2, Docket No. 2337). The Settlement Agreement Provision Section II J of the 1989 comprehensive Settlement Agreement states in its entirety: 435830-v1 The State, Joshua and LRSD recognize that PCSSD and NLRSD are independent, sovereign desegregating school districts operating pursuant to court orders and agreements and that this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation activities with the LRSD and others. [emphasis added] This language, which remains operative, was not some idle boilerplate or filler. Indeed, as we will explain further, it was not part of the original agreement between the State, LRSD and Joshua but was only negotiated after the State bad first reached agreement with the LRSD and then turned its attention toward securing agreement from the PCSSD and the NLRSD. (Exhibit 2). Further, there was then a real and immediate specter of consolidation which prompted this negotiated language which, while it survived the legislative and judicial approval process, came under attack from many legislators, commentators and in editorials. (Exhibits 1, 6, 7, 8, 9, 10, 12, and 14). It should thus be clear that Section II J. was a key component of the settlement for which the PCSSD (as well as the NLRSD) separately negotiated. The reasons are clear. Not only was the PCSSD guarding against consolidation, but also against any new usurpation of its territory, facilities and assets similar to the appropriation (albeit by judicial order) that occurred in the early phases of this case. Absent this promise by the State, it had no logical reason to join the settlement. Were it to be either consolidated or carved up into pieces, it would have no reason to settle. While it is clear that many in the legislature and those \"commenting on the scene\" opposed Section II J., the fact remains that it is an integral part of the Settlement Agreement and retains full force and vitality today. In his June 4, 2003 letter (Exhibit 16), generated as part of the proceedings before the State Board, the Attorney General appropriately discussed the fact that while \"successor district\" language was included in the settlement agreement as respects the LRSD, he noted 435830-v1 2 that no such language was presented as regards the PCS SD or the NLRSD. As the Attorney General explained: All of this suggests that either (a) the parties simply did not anticipate that a \"successor\" district might be created from territory that was formerly within the PCSSD, or (b) the parties specifically intended that there would not be any such \"successor\" district created under any circumstances, or that any successor district would not be a party to the Settlement Agreement. Subparagraph (b) of course is the correct analysis because of the presence of Section II J. On the same page and same footnote the Attorney General further noted that: Logic suggests, however, that a group of individual schools could not so easily extricate themselves from federal court supervision (and court-imposed obligations) in a desegregation case by merely \"detaching\" themselves from a school district under supervision, at least not without the consent of all parties to the case and the Court overseeing the litigation. (Emphasis supplied). The Attorney General notes in his last footnote that: In this particular case, the parties with standing to object would be the State itself, the three Pulaski County districts, and the Joshua and Knight intervenors. Section II L. The principal motivation for the State to enter into and subsequently fund the Settlement Agreement was to minimize the dollar cost for its past constitutional violations and to obtain a release of all claims for all violations which had occurred prior to execution of the Settlement Agreement. While the State has been subjected to successful claims by the school districts for departures from the Settlement Agreement, (Statement 1s 20, 21, 22 and 23) it has, thus far, for over fourteen years, avoided a claim or contention that it has violated the constitution or 435830-v1 3 enacted statutes which either promote segregation or hamper desegregation. 1 However, the statute at issue, by its own legislative language, sets up an interesting dynamic not otherwise present in Arkansas law. As counsel for the Department of Education and the Attorney General's office have repeatedly pointed out: \"the state board is prohibited by law from approving any petition for detachment which hampers, delays or in any manner negatively affects desegregation efforts of a school district or districts in this state.\" (Exhibit 16) Indeed, it would appear that the legislature had the proscriptions of the Settlement Agreement in mind when it crafted this very rigorous test for detachment. The Settlement Agreement at page 10 states: \"The State will enact no legislation which has a substantial adverse impact on the ability of the [Pulaski] Districts to desegregate.\" By ultimately approving a new school district, the State will have participated in a process that artificially accelerates the evolution of the PCCSD to a majority black school district. When all three districts become majority black, then the State will argue that its obligation to fund M-to-M payments will suddenly and abruptly end. (Indeed, a cynic might wonder if there are those in authority who may have already figured this out.) If and when this day comes, the financial consequences to the three current districts in this county would be crippling. 1 After each legislative session, the ADE invites the PCSSD, as well as the other Pulaski districts, to identify new legislation which the district believes will hamper or negatively affect its desegregation efforts. The PCSSD duly noted by letter dated April 26, 2002, that it believed the detachment statute at issue would negatively affect its desegregation efforts. 435830-v1 4 This Court has consistently reiterated the proposition that: \"A party may not unilaterally change the implementation or language of an agreement or order without the prior approval of the Court and/or the consent of the parties.\" (Order dated January 13, 1995, at page 10, Docket No. 2337). The State of Arkansas needs to focus on its obligation in the settlement to give the Pulaski County school districts special consideration to enable these districts to meet their numerous and burdensome obligations under the settlement. The Court reminds the State of the Eighth Circuit's specific findings about the State's complicated and lengthy history of promotion of unconstitutional racial segregation which has led to this interminable litigation. The swiftest and surest way out of the federal court is to abide by the terms and spirit of this Settlement Agreement, and this includes following proper procedures for modification of the settlement. (Emphasis in the original) (Order dated January 13, 1995, at pages 16, 17, Docket No. 2337). The Equal Protection Claim Under the new detachment statute, when part of a school district attempts to detach itself from the school district, and become its own entity, a majority vote of only the voters in the area to be detached is permitted. Ark. Code Ann. 6-13-1504(3)(C). This provision is clearly unconstitutional and denies equal protection of the laws to those voters remaining in the original school district who are not allowed to vote even though they will be materially affected by detachment. The United States Supreme Court has stated that if a state statute is challenged on the grounds that it grants the right to vote in a limited purpose election to some otherwise qualified voters, but denies it to others, then the court must be called upon to determine whether the exclusion from the election is necessary to promote a compelling state interest. Kramer v. 435830-v1 5 Union Free School District, 395 U.S. 621, 633 (1969); Cipriano v. City of Houma, 395 U.S. 701, 704 (1969). The Kramer court went further to point out, that when the State's sole justification for the statute is that the classification provides merely a reasonable basis upon which to determine which voters have a special interest in the outcome of the election, then the statute fails to meet the \"exacting standard of precision we require of statutes which selectively distribute the franchise .\" Kramer, 395 U.S. at 632. In determining whether there has been a violation of the equal protection clause, the court's attention should be focused on two inquiries: (1) whether there is a genuine difference in interests among the two groups that the State has created, and (2) if so, whether any resulting increase . in voting strength of one group over the other amounts to discrimination under the Equal Protection Clause. Town of Lockport, N. Y. v. Citizens for Cmty. Action At - the Local Level, Inc., 430 U.S. 259, 268 (1976). In several cases the Supreme Court has allowed the electorate of a special-purpose unit of government to be apportioned to give more weight to a certain sector which is found to be most affected by the government unit's functions. Id. at 266. But, as Kramer points out, the classification of voters into \"interested\" and \"non-interested\" groups must be reasonably precise, and the State must have a compelling state interest that the statute, and its classification of voters, furthers. Kramer, 395 U.S. at 633. Several United State Supreme Court cases demonstrate these principles. For example, in Kramer the court found it was unconstitutional and a violation of equal protection to restrict the voting in a school board election to either those people who paid property taxes or rented homes, or to those people who had children enrolled in the schools. Id. The court applied 435830-v1 6 - heightened scrutiny, and reasoned that this distinction among voters was not necessary to promote a compelling state interest. Id. The court did not afford the usual presumption of constitutionality to this election statute. Presumptions of constitutionality for statutes are based on the premise that the state governments are structured to fairly represent people. Id. at 628. But, when the challenge to the statute is basically a challenge of the basic premise, the premise can no longer serve as the basis for presuming constitutionality. Id. Additionally, the court in Kramer pointed out that the statute defining who could vote in school board elections was not narrowly tailored to serve a compelling state interest, because it was simultaneously too over inclusive both as well as too under inclusive. Id. at 632. The court stated that these election criteria excluded \"senior citizens and others living with children or relatives; military personnel, and others who live on tax exempt property; boarders and lodgers; parents who neither lease nor own qualifying property and whose children are too young to attend school; and parents who neither own nor lease property and whose children attend private school.\" Id. at 630. Further, the Supreme Court in Cipriano, decided that a Louisiana statute conferring the right to vote in bond issuance elections only to those people who paid property taxes was unconstitutional as denying equal protection. Cipriano, 395 U.S. at 704. Just as in Kramer, the Cipriano court pointed out that when the vote, in a special purpose election, is given to some people, but denied to others then the court must determine whether the exclusions are necessary to promote a compelling state interest. Id. The Cipriano court also noted that it is unconstitutional to deny the vote to some people because of the way the members of that group might vote. Id. at 705. 435830-v1 7 Similar to the voting classifications drawn in Kramer and Cipriano, the Arkansas statute which only allows voters in the area to be detached to vote in the detachment proceedings, and denies the vote to those in the remaining area is unconstitutional, because the statute offends the notion of \"one person, one vote.\" By denying interested and affected voters the right to vote, the state is ultimately denying equal protection of the laws to those who are not allowed to vote in this school district election. This distinction of the voters does not further a compelling state interest, and is therefore unconstitutional.2 First, as indicated by the Kramer court, this statute should not be given a presumption of constitutionality because the challenge to the statute is to the basic premise that the laws are created by a fair process. Because the process is being challenged in this case, the usual presumption of constitutionality cannot be afforded. Therefore, in analyzing whether there has been an equal protection violation the court must focus on whether there is a genuine difference of interests among the two groups the state has created, and if so whether the resulting increase in voter strength in one of the groups amounts to discrimination under the Equal Protection clause. Since the Arkansas statute allows only those people residing in the area to be detached the vote, one gets no further than the first step under this analysis. There 2 Indeed, the principal interest being endorsed by the State in this instance is to apply detachment only to the PCSSD. As we noted in our State Court complaint (Exhibit 20), the detachment provision applies by definition only to the PCSSD and to no other school district. Thus, is not even dealing with \"special purpose elections\" Statewide but only to one that is limited to the PCSSD. Stated another way, to the extent that others in other school districts might wish detachment, there is no statutory provision available to them to seek it. The detachment statutes apply neither to the largest district in the State, middle sized districts or the smallest. It applies only to the PCSSD. 435830-v1 8 is no real and distinct difference, and certainly not a compelling difference, in the interests between those in the Jacksonville area and those remaining in the Pulaski County Special School District. The state must have a compelling reason or justification for distinguishing between those wanting to be detached and those who would remain from the original school district. It is not enough to say that distinguishing them in this manner is for purposes of determining who is interested or affected by the election and who is not. The residents of the PCSSD who do not seek to be detached have a real and palpable interest in the matter of the detachment, yet they are being denied the right to vote in the election. If Jacksonville were to detach, this would have a definite and immediate impact on the processes and operations of the other schools that would remain in the PCSSD. School funding, transportation and busing, teacher school assignments, and student assignments would most certainly be affected. The school district would have to immediately reconfigure its processes, resources and operations. Therefore, as a result of the sudden impact the detachment would have on the entire PCS SD, it is disingenuous to claim that those residing in the area that would remain the PCSSD are not interested or affected by this vote. Further, this distinction the State has made is not so precise as to satisfy the exacting standard set forth in Kramer. Just as in Kramer, this election statute is not narrowly tailored to achieving the goal of franchising those people interested or affected by the vote. The statute is over inclusive in the sense that it allows people in Jacksonville to vote that have, at best, a remote or indirect interest and are not affected by the school detachment election whatsoever. For example, a senior citizen residing in Jacksonville with no children, and no more children 435830-v1 9 expected in their lifetime are allowed to vote in this school detachment election. A single airman with no children living in base housing during a two year assignment may vote. On the other hand the statute is under inclusive because it denies the right to vote to those people in the PCSSD who do not live in the Jacksonville area and who would be severely affected by the outcome of the election, such as those people with children currently attending a school in the PCSSD particularly schools such as College Station, Fuller and Mills whose very programs are threatened by the detachment. This distinction is not made with the precision necessary to safeguard equal protection of the law. Negative Impact Upon Desegregation Although the June 4 letter of the Attorney General was necessarily fairly general in most respects, it was quite specific as regards certain areas. As the Attorney General opined: [a]ny detachment of a significant amount of territory from the 435830-v1 PCSSD could almost certainly be expected to have an \"impact\" on the PCSSD's ability to comply with its desegregation plan and have an impact on the operation of the Settlement Agreement, including the Agreement's provisions concerning M-M students and the Magnet schools in the LRSD. The Court of Appeals has previously succinctly explained the M-to-M arrangement: M-to-M students are peculiar to the districts that are parties to the Settlement Agreement. They are students who are of the majority race in their home districts, and who voluntarily transfer to .another Pulaski County district where they are of the minority race. The State, by way of a funding formula contained in the Settlement Agreement, compensates both the home district and the receiving district for each M-to-M student. The home, or sending, district receives one-half of the state aid that it would have received if the student had remained in the district, while the receiving, or host, district receives the full cots of educating the student. (United States Court of Appeals, No. 95-1481EA, Docket No. 2718, Opinion filed May 15, 1996). 10 The three specialty schools in the southeast portion of Pulaski County all contain programs which were specifically designed for and gained Court approval for desegregation. The PCSSD calculates that approximately 200 students from the area proposed for detachment attended those schools last year. These students are necessary for the continued vitality of these programs, all of which feed to Mills University Studies High School, recently recognized as the 20th \"best\" high school in the country. Newsweek, May 2003. Included as Exhibit 17 is a memorandum from Davis Hendricks, the District Director of Talented and Gifted Programs, prepared the day after the Board's June 9 hearing. The memorandum explains at least two things. First, it shows the extensive array of AP courses currently available at both Jacksonville High School and North Pulaski High School. It also explains in some detail how the detachment would negatively impact the College Station, Fuller and Mills programs. The PCS SD calculates that the detached district would have 3, 700 elementary students of whom only 32.7% would be black. At the secondary level, the PCSSD calculates an enrollment of 3,757 and that only 32.4% of those students would be black. Since the petitioners calculated that the residual PCSSD would be 39 % black, there is a difference of six and one-half percentage points. The PCSSD calculates that the new district would enroll 7,457 students. Individual Schools As for individual schools, the impact upon Clinton Elementary is profound. Detachment would cause the loss of 124 students and would push Clinton from 55 % black to 60 % black. It is required to be no more than 50 % black. 435830-v1 11 Clinton is an inter-district school. The Court of Appeals has specifically stated that one of the elements of the Settlement Agreement it considers to be crucial, and with respect to which no retreat should be approved, is the operation of the agreed number of inter-district schools according to the agreed timetable. (Appeal of Little Rock School District, 949 F .2d 253,256 (8th Cir. 1991)). The PCSSD projects that 61 students would leave College Station reducing its enrollment from 215 to 159. This would artificially increase the black population at College Station from the current 55 % to 59 % black. The enrollment at Sylvan Hills Middle School would increase from 878 to 972, the African-American percentage would increase from 39% to 45 % and the building capacity of 925 would be grossly exceeded. Court Orders As recently as March 25, 2003, this Court noted that: Further, the Court is informed that Sylvan Hills Middle School no longer has the capacity to accommodate all 6th grade M-to-M students who attended Clinton Interdistrict School through the 5th grade. Those students should be informed of their opportunity to attend the new middle school in Maumelle. (Order, March 25, 2003) Accordingly, the PCSSD reiterates its point that the displaced students, many of whom are black, who the petitioners submit can \"easily be accommodated at Sylvan Hills\" simply cannot be. 435830-v1 12 Part of the detachment proposal flies in the face of another order entered by the District Court on January 28, 2003. In evaluating and approving the PCSSD plans for the redesign of Harris Elementary School, this Court ruled that: African American students from Brushy Island will not be reassigned to Harris but will continue to attend Cato Elementary. Cato Elementary student enrollment will remain 75 % Caucasian (white) and 25% African American (black). (Order, January 28, 2003). However, the petitioners are excluding the Brushy Island students from Cato and are leaving them to be assigned somewhere in the PCS SD. The petitioners say send them to Sylvan Hills but there is no room. The Court has said they will not be reassigned to Harris. Where can they go? Another aspect of the Court's January order as respects Harris requires the PCSSD to vigorously recruit minority students (white) from north of the river for placement at Harris. The Director of Equity and Multicultural Education was ordered to direct this \"intensification\" of effort. Of course, if most of the PCSSD north of the river is allowed to detach, it will render the PCSSD substantially unable to comply with this order. Sylvan Hills Petitioners make some rather astonishing suggestions regarding Sylvan Hills High School. At page 6 of counsel's letter (Exhibit 17), the following statements are made: 435830-v1 Moreover, even assuming a real capacity problem at Sylvan Hills High School, the District Court could address the problem in a number of ways to avoid any negative affect on desegregation. One option may be to revise the attendance zones for all of PCSSD's high schools. The ODM reported that the PCSSD has not revised its attendance zones in \"many years\" and recommended that it do so. See ODM March 26, 2003, pp. 19 13 and 21. Another option may be to discontinue the school's specialty program that allows students residing outside the attendance zone to attend the school. This program was implemented to increase the African-American enrollment at the school at a time when it was below the minimum of 20 percent. The African-American enrollment at the school in 2002-03 was 35 percent. This calls into question the continuing need for the program to increase African-American enrollment. A third option may be to build additional classrooms at Sylvan Hills High School. The PCSSD recently added new classrooms at Robinson High School to address overcrowding at that school. In short, a capacity problem at Sylvan Hills High School can easily be addressed without negatively affecting desegregation. As to revising attendance zones or disestablishing a specialty program, a cardinal rule in desegregation is \"if it ain't broke, don't fix it\". Any effort to disestablish a successful program would immediately be attacked by Joshua. Moreover, if the PCS SD is compelled to build additional classrooms because of the - efforts of the petitioners and the actions of the State, who is going to pay for this construction? The petitioners? The State? The upshot of petitioners' suggestions is that the \"suggestions\" prove that the detachment would have a negative impact on desegregation in the PCSSD. Further, they ignore the fact that much of the increase in black enrollment at Sylvan Hills is M-to-M students from the LRSD. To discontinue or even diminish the specialty program, affects not only the PCSSD but the LRSD as well. Enrollment While the feasibility study forecasts that the PCSSD would remain the second largest district in the State, the PCSSD calculates it would be relegated to only the sixth largest district in the State with fewer than 10,500 students. (Before the Pulaski County school desegregation 435830-v1 14 case was filed, the PCSSD boasted an enrollment of almost 33,000 students and was by far the largest school district in the State.) Such a dramatic reduction in enrollment will undoubtedly require a reduction in force not only among teachers and staff but within the Central Office as well. Such dislocations, heartache and career affecting decisions are simply unnecessary. Further, the feasibility study (Exhibit 15 at page 39) points out that density of students per square mile would improve from 25 in the current PCSSD to approximately 53 students per square mile in the new district. While the feasibility study boasts that this will improve transportation in the new district, it singularly fails to point out that the current density of 25 students per square mile logically and necessarily becomes far less in the residual PCSSD. This sets up the real potential for more and longer bus rides, less efficiency and an undoubted negative impact upon desegregation and the district's ability to stem enrollment declines and to attract more students. Strong Precedent Supports The PCSSD Position Many unsuccessful efforts to detach from districts operating pursuant to desegregation orders litter the legal landscape in this jurisprudence. The latest appears to be Lee vs. Chambers County Board of Education, 849 F.Supp. 1474, (M.D.Ala. 1994). The case is an outgrowth of Lee vs. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.) (threejudge court), aff'd sub nom. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967). In that case, a three-judge district court ordered Alabama's local school districts, including Chambers County and Lanett City, to disestablish their racially segregated - and discriminatory systems. 435830-v1 15 While the Lee case is procedurally and statutorily complicated, it does bear remarkable similarities to the case at bar. By 1990, the City of Valley, located within Chambers County, had become frustrated with the Chambers County Board of Education believing it had ignored requests to improve the schools in the City of Valley. Id. at 1478. The City of Valley attempted to form its own separate school district which was opposed by the county. Among the complaints of the City of Valley was that the county enrollment had been declining, that historically there had been a tension between the Valley area and the rest of the county, and that no new facilities had been built in the Valley area since the early 1980s. As part of its proposal to create its separate school system, Valley agreed to abide by any orders of the Court which orders are designed to assure that such a system will not impede the desegregation process in Chambers County. It also committed itself to operate a totally integrated system including utilizing existing attendance zones. Id. Valley considered at least three options for configuring the district but chose Option 1 because it would leave existing attendance zones intact, cause the least student disruption, allow children to attend schools they or their parents had historically attended and effect no changes in the remaining schools. Id. at 1485. Among the factors that were not considered by Valley was the affect upon children having special educational needs, the Court pointing out that these costs are not fully funded from State or Federal sources and that the local cost for these programs can be a substantial burden. 435830-v1 16 We note that Jacksonville has performed no such analysis in this case either, even though the PCSSD facilities for children with multi handicapping conditions are all located in schools proposed for detachment. As the Court noted in Lee. (Id. at 1490) If the court permits the Valley district to operate, the Chambers County district would have to equip and operate special education programs now offered only at schools in the Valley area, such as the pre-school handicapped student program at Fairfax Elementary School and the gifted student program at Fairfax Elementary School. After a long discussion of the facts and the law, the Court finally came down to the issue of \"Practicability\". Beginning at page 1498, the Court explained that: (Id. at 1498) (Id. at 1498) 435830-v1 The court must also consider whether Valley's proposal introduces a level of complexity to the desegregation process in Chambers County that is so great that it will itself be an impediment to the speedy and effective elimination of the remaining vestiges of the dual school system. Valley takes the position that the ongoing desegregation process in the Chambers County school district will not be affected adversely by its establishment and independent operation as a separate system because any issues that may arise can be negotiated between the school systems, resolved by the State Superintendent of Education, or be determined by this court. Thus, at a time when Chambers County school authorities should be devoting their energies and attention to implementing the recent Orders of this court and to devising and implementing the comprehensive blueprint for final constitutional compliance as agreed by the parties and that is required by the 1993 Agreed Order, if operation of a Valley district were permitted, they would instead be enmeshed in negotiations, state administrative 17 (Id. at 1499) - (Id. at 1499) (Id. at 1500) proceedings, and possible further appearances before this court to resolve disputed matters. If the City of Valley is permitted to operate a separate and independent system, these efforts-and the progress of the Chambers County public schools toward unitary status-will become far more complex. For example, each teacher assignment decision presently is affected by current assignments throughout the existing Chambers County school district. To the extent that full constitutional compliance has not been attained-and it currently has not been attained at the time a separate Valley district begins operations, both school systems will share in the responsibility for achieving the original goal of having racially non-identifiable faculties among all of other schools that either operates. If the districts operate independently, however, ensuring the realization of this goal will inevitably cause friction and ultimately involve this court in a level of detailed supervision and administration of local schools that would be unwieldy and unwise. The court finds that the introduction of an independent decisionmaking body (a new school district) in the midst of the desegregation process in Chambers County will greatly complicate planning and implementation of measures necessary for constitutional compliance, will increase the potential for conflict, will be likely to involve this court in an unnecessarily detailed level of supervision and administration (thus displacing local control), and ultimately will impede the County's progress toward a unitary system from which all vestiges of past discrimination have been eliminated. In its conclusions of law, the Court appropriately traced the cases from the United States Supreme Court which culminate in the lead decision: 435830-v1 Over 20 years ago, the Supreme Court firmly established the test which must be applied in situations such as this: 18 435830-v1 We have today held that any attempt by state of local officials to carve out a new school district from an existing district that is in the process of dismantling a dual school system \"must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of a dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.\" United States v. Scottland Neck Bd. of Educ., 401 U.S. 484, 489, 92 S.Ct. 2214, 2217, 33 L.Ed.2d 75 (1972) (citing Wright v. Council of City of Emporia, 401 U.S. 451 , 460, 92 S. Ct. 2196, 2202, 33 L.Ed.2d 51 (1972)). In Wright v. Council of City of Emporia, the city which wished to form and operate a splinter school district made much the same argument as that of Valley here: ... Emporia advances arguments that a separate system is necessary to achieve quality education for city residents, and that it is unfair in any event to force the city to continue to send its children to schools over which the city, because of the character of its arrangement with the county, has very little control. Id. at 467, 92 S.Ct. at 2205. The Supreme Court's answer to that argument must guide the court in its decision in the case at bar: The District Court, with its responsibility to provide an effective remedy for segregation in the entire city-county system could not property allow the city to make its part of that system more attractive where such a result would be accomplished at the expense of the children remaining in the county. Id. at 468, 92 S.Ct. at 2206. The year before, the Fifth Circuit had dealt with the issue of a splinter school district in a case involving Alabama splinters (Pleasant Grove, Vestavia, Midfield and Homewood) withdrawing from their parent (Jefferson County). Stout v. Jefferson County Board of Ed., 448 F .2d 403 (5th Cir., 1971 (\"Stout I\") [FN26] The court held: .. . [W]here the formulation of splinter school districts, albeit validly created under state law, have the effect of 19 435830-v1 thwarting the implementation of a unitary school system, the district court may not ... recognize their creation. Id. at 404 (footnote omitted). On remand, the district court ordered the splinter districts to accept a proper role in the desegregation of the county system. This was affirmed on appeal, Stout v. Jefferson County Board of Education, 466 F2d 1213 (5th Cir. 1972) (\"Stout II\"), cert. denied, sub nom., Stripling v. Jefferson County Bd. of Educ., 410 U.S. 928, 93 S.Ct. 1361, 35 L.Ed.2d 589 (1973), with the Fifth Circuit holding that legally created splinter school districts could be disregarded if their existence thwarted implementation of a unitary school system in the county as a whole. The court went on to say that courts should not remove local control indefinitely and that sovereignty should be returned to a splinter district when the splinter demonstrates \"by clear and convincing evidence\" that it is able and intends to comply with the court's orders concerning its role in the desegregation of the county school district. Id. at 1215. Valley argues that the latter holding in Stout II should cause this court to authorize it to operate a separate school system because it has pledged to the court that it would follow any order which the court might issue as to the role which the Valley district should play in assisting to complete desegregation of the schools in Chambers County. Valley also emphasizes its commitment to operate an integrated system, even hopefully a \"model\" system, within its new district for the benefit of children of all races. While the court accepts the sincerity of Valley's officer, accepts Valley's assurance that it intends to operate a fully integrated school system that would be eligible to be adjudged a unitary system if judged along, and accepts Valley's commitment that it has no intention to impede the progress of desegregation in the county system, this begs the real issue. As the Supreme Court has stated, \"[t]he existence of a permissible purpose cannot sustain any action that has an impermissible effect.\" Wright, 407 U.S. at 462, 92 S.Ct. at 2203. The issue here is not whether Valley could create a fully integrated unitary system for itself, or whether Valley is willing to accept a role in desegregating the county system. The basic issue before the court is whether a separate Valley system can be operated at this time, even accepting whatever role the court might assign it, in a way which does not impede the final dismantling of a dual school system in Chambers County. (Id. at 1500, 1501). 20 (Id. at 1502) (Id. at 1503) (Id. at 1503) The court has carefully considered Valley's proposals. Although it has expressed preferences, Valley has suggested several alternatives designed to address the various Green factors, all of which it is willing to accept. And, while the burden of proof is properly on Valley, the court has struggled with Valley's request that it \"mandate a desegregation plan that incorporates, recognizes and accommodates the existence of and in turn operation of a city school system by the Valley City Board of Education.\" (Brief in Support of Amended Petition to Intervene on Behalf of the Valley City Board of Education and the City of Valley, Alabama.). The court has concluded that it cannot be done at this time. What we must all seek -- the parties, the lawyers, and the court -is to finally remedy the constitutional violations created by the old state-imposed system of segregated schools to the end that the federal courts no longer have to supervise the operation of the public schools of Chambers County, not to adopt a patchwork approach which depends on continued court involvement to make it work. The facts in this case impel the court to the inevitable conclusion that this ultimate objective for the Chambers County schools would be impeded by the operation of a Valley school system at this time. Accordingly, the court will deny Valley's request to operate as a separate school district. Teacher Deployment As to teacher deployment, the petitioners stake out the naive position that the Federal District Court could simply order all the teachers to stay where they are. (Exhibit 17 at 8). This assumption ignores the realities of teacher unions, teacher contracts and previous admonitions from the United States Court of Appeals. For instance, the PCSSD successfully 435830-v1 21 enjoined an on-going teacher strike in 1996. The union appealed to the Federal Court of Appeals arguing that the union negotiated contract between the PCSSD and the Teachers' Union was none of the District Court's business. The Court of Appeals agreed, reversed the District Court and explained to the parties that the role of the District Court is to enforce the Settlement Agreement (which is silent as to the master contracts), but not to otherwise interfere with the rights of employees and organizations of employers. 112 F.3d 953@ 955. Petitioners' position is completely silent regarding recognition of a new teacher organization for a new district. Is this or is this not part of their proposed calculus? As the PCSSD knows from prior difficult and trying circumstances, many teachers prefer working in a district which recognizes a union. The Stipulations The M-to-M stipulation and the magnet schools stipulation are just that: Stipulated agreements among all of the parties. Therefore, as a threshold matter, it would seem that the specific written consent of Joshua, the Knight Intervenors, the North Little Rock School District, the Little Rock School District, the State and the PCSSD would be required before these \"agreements\" could be made operative in a detaching district. Indeed, as we know from the Eighth Circuit, a District Court cannot impose agreements but can only accept or reject them. 921 F.2d 1371@ 1388. Further, both stipulations are part of the 1989 Settlement Agreement. It seems logical that the Agreement would have to be renegotiated and reexecuted by all of the parties to the case to include the new district. Query, would the renegotiated agreement then have to be submitted to the next session of the legislature to determine if the legislature was willing to fund this modified agreement? Again, as the Eighth 435830-v1 22 Circuit has taught us, the District Court cannot impose an agreement upon the parties to this case unless they all consent. The PCSSD Would Have To Rezone Zones 4 and 5 would be completely removed from the PCSSD. The detachment would require the residual PCSSD to constitute new zones some seven years in advance of the next census. This would constitute an unnecessary and unwarranted expense and disruption to the governance of the residual PCS SD. Time has yet to permit an analysis as to the effect such rezoning would have upon those protected by the Voting Rights Act if detachment was successful. Federal Court The strategy of the petitioners seems to be to shift as much of the process and decision - making as possible to the Federal District Court often re-assuring the State Board that the Federal Court can do whatever is necessary to impose obligations, agreements and the like. We have previously explained that the District Court is not all powerful. It cannot, for instance, as we have explained, tell teachers where they are going to teach. It cannot create capacity in schools where none exist. Indeed, the current jurisdiction of the District Court is \"only\" to enforce the Settlement Agreement (which it has done) and to monitor and enforce the desegregation plans (which it continues to do). The detachment statute is, in effect, an effort by a State to confer jurisdiction upon a Federal Court. So far as the PCSSD knows, this effort is unprecedented. It is also highly suspect. 435830-v1 23 However, petitioners successfully convinced the Board that \"the Federal Court will fix it\" , and won authorization for the election. Presuming a successful election followed by a large street party, the new district would then show up on the District Court's doorstep with a ten page laundry list of issues to be decided. This scenario is not calculated to advance the ultimate resolution of the case and should be ended now. Conclusion For all of the foregoing reasons, this Court should determine that the statutes violate the Settlement Agreement, are an unconstitutional denial of equal protection, and will negatively impact desegregation and the ultimate resolution of this case. 435830-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 By '-y)7 ' ?~ ~0~ M. _Srunuel Jones III (769 0) A-ifurneys 'or Pulaski c6un Special School strict 24 CERTIFICATE OF SERVICE On July ;25, 2003, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway . Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Mark Burnette 1010 W. Third Street Little Rock, AR 72201 435830-v1 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Scott Smith General Counsel Arkansas Department of Edudation #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 M.S~nesII( 25 .. I II II II II II I I I I I I I .. I IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. STATEMENT OF MATERIAL FACTS History of the Settlement Agreement RE?L~D JUL 2 8 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. 1982. The LRSD sues the State, the PCSSD and the NLRSD successfully seeking consolidation of the three districts in Pulaski County. 921 F.2d 1371@ 1376. 2. 1985. The Court of Appeals rejects consolidation but orders that the boundary between LRSD and PCSSD be adjusted. 921 F.2d 1371@ 1377. 3. 1985. This boundary adjustment caused PCSSD to lose fourteen schools and over one-third of its tax base. 4. Late 1988. Initial settlement discussions are commenced among the State, the LRSD and the Joshua Intervenors. 921 F.2d 1371 @ 1376. 5. January 12, 1989. Senator Jerry Jewell introduces Senate Bill 39 to consolidate the Little Rock, North Little Rock and Pulaski County Special School District schools . (Exhibit 1) 434696-v1 I I 1: .- 1 I I I I .. I I 6. January 31, 1989. The State Board, LRSD and Joshua Intervenors reach a proposed settlement. The State's attorney reports that \"meetings to obtain the agreement of the other parties are underway today between attorneys and representatives of the State Board, PCSSD and NLRSD.\" (Exhibit 2) 7. February 9, 1989. The State hires the national law firm of Hogan \u0026amp; Hartson which specialized in school desegregation to advise it concerning desegregation. (Exhibit 3) 8. February 14, 1989. Counsel for the LRSD delivers a draft of Proposed Settlement Agreement to the State's attorney. This draft does not contain a Section II J . (Exhibit 4) 9. March 1989. The settlement is agreed to by all of the parties. The final version contains Section II J. (Exhibit 5) It is submitted to the legislature for funding . 10. March 3, 1989. In an editorial discussing the settlement, the Arkansas Gazette notes that: \"A key provision is that the Little Rock, North Little Rock and Pulaski County School Districts recognize that they remain 'independent, sovereign desegregating' districts. This could become an impediment to a countywide consolidation in the future, and if so it is an unfortunate provision.\" (Exhibit 6) 11. March 7, 1989. The Arkansas Gazette reports that the county district's attorney told the county board that the settlement went through 27 revisions before being made public because of the complexity of the issues. (Exhibit 7) 12. March 11, 1989. In explaining the settlement to the Joint Budget Committee, the State's attorney noted that: \"This agreement is so fragile that if it starts to unravel in any way, if there's any kind of modification to it, it's going to fall apart and unravel in 100 434696-v1 2 I I I I I I I I I I -~ I different ways.\" In the same article, Senator Max Howell noted he did not want to vote for the settlement if it meant forever prohibiting consolidation of the three county districts. \"I'm not antagonistic toward the dollars, but I am concerned that I understand the small print.\" (Exhibit 8) 13. March 12, 1989. One statewide commentator, in characterizing Section II J, opined that: \"A brazen provision slipped into this settlement at the last minute guarantees there will be no consolidation of the school districts. Surprise!\" (Exhibit 9) 14. March 16, 1989. The Arkansas Senate approves the bill funding the settlement but adds an amendment asking the Federal Courts to consider four changes in the settlement including: \"Disapproval of language that would retain the autonomy of the three Pulaski County districts.\" As Senator Max Howell stated: \"I would hope the Court would be aware that we in the Legislature feel the folks who caused this should not continue to be in control of the situation.\" (Exhibit 10) The press reported that: \"Legislators have expressed concern that the provision would forever bar the State from merging the three districts, and the State Education Department's attorney told them Monday that McCutcheon (the Special Master) apparently shared that concern.\" (Exhibit 10) 15. March 18, 1989. Press reports described II J as one of the \"key\" provisions of the settlement. (Exhibit 11) 16. March 24, 1989. Mr. Herschel Friday writes the attorneys for the parties noting that: \"During the debate which preceded the vote to fund the settlement in this case, I was repeatedly questioned on whether changes requested by the legislature could be made in the settlement. A copy of the requested changes is enclosed for your 434696-v1 3 I I I . I I ready reference. I agreed to follow through to see that the legislative requests were duly considered by the parties and to use my best efforts in this regard. . . . Will you please discuss these requests with your clients so that we can meet in the near future and address these matters.\" (Exhibit 12) A copy of the requested changes, which included Section II J, is attached as (Exhibit 13) . 17. March 31, 1989. Counsel for the AEA informs Mr. Friday that they object to removing any of the items from the settlement agreement. (Exhibit 14) 18. December 11 , 1989. The District Court purports to approve the settlement agreement but only after imposing certain modifications. 726 F.Supp. 1544, 1549 . 19. December 12, 1990. The Court of Appeals reverses the District Court, ruling that the Settlement Agreement should have been approved as written by the parties. 971 F.2d 160@ 164, 165 . Previous Efforts To Enforce Violations Of The Settlement Agreement 20. At least three times during the decade of the 1990s, the Pulaski districts were forced to sue the State to enforce the Settlement Agreement. 21. On January 13, 1995, the District Court ruled that the State had violated the Settlement Agreement as respects Workers' Compensation payments due the three Pulaski districts. (Docket No. 2337). This order was affirmed on appeal. 22. On January 13, 1995, the District Court ruled that the State had violated the Settlement Agreement as respects \"loss funding\" for M-to-M students (Docket No. 2337) and the financial award was affirmed on appeal. 23. Later, the District Court rules that the State has violated the Settlement Agreement as respects reimbursement for teacher retirement and health insurance benefits due 434696-v1 4 I I I I I I I II I l _i I . I . I le I the three Pulaski districts. This matter was subsequently settled and the three districts continue to receive these payments to this day. The Detachment Effort 24. 2001. The General Assembly enacts ACA 6-13-1501, et seq. Representatives of the PCSSD testify against the measure. The statute permits detachment under specified circumstances but only for districts with an average membership of at least 15,000 students but not more than 20,000 students. The PCSSD is the only district in the State of Arkansas which fits this criterion. 25. November 21, 2002. A so-called feasibility study for forming an independent school district in Northeast Pulaski County detached from The Pulaski County Special School District is completed. (Exhibit 15) 26. The study examines three alternative areas for detachment and concludes at page 39 that Alternative I be selected. (Exhibit 15) 27. February 25, 2003. An \"Addendum\" to the feasibility study is completed and is inserted in the back of the November 21, 2002, study behind page 89, the concluding page of the November study. (Exhibit 15) 28. March, 2003. A petition drive is commenced, subsequently concluded and petitions are delivered on May 19, 2003, to the Arkansas Department of Education. 29. April 15, 2003. The Legislature approves an amendment to ACA 6-13-1501, et seq. adding a criterion allowing detachment from school districts which encompass a total area of 700 square miles or more. The Pulaski district, at 726 square miles, is the only district which meets this criterion. 434696-v1 5 , le I I 30. May 30, 2003 . Carolyn Staley certifies that the petition has sufficient signatures. 31. June 4, 2003. The Attorney General's office, as required by this statutory scheme, renders an opinion but states he is unable to clearly opine as to whether or not the statutory requirements have been met because of the lack of information in the feasibility study. (Exhibit 16) 32. June 9, 2003. The State Board of Education conducts a hearing on the detachment petition but delays action. It instructs the petitioners to \"answer the questions\" raised by the Attorney General and to submit that information to the Attorney General's office so that the Attorney General may issue a \"definitive\" opinion on the issue. 33 . June 27, 2003 . The petitioners deliver their supplemental materials to the State Board and to the Attorney General's office including an opinion from an attorney regarding the affects or lack thereof upon desegregation. (Exhibit 17) 34. July 11, 2003. The Attorney General issues a new opinion which, while still highly qualified in many respects, opines that the petition could be granted if certain findings are made. (Exhibit 18) 35. July 11, 2003 . The State Board of Education, in the afternoon, gives notice that it has scheduled a hearing to take up this matter again on July 14, 2003. 36. The PCSSD objects to the timing of the meeting and the lack of notice. (Exhibit 19) 37. July 14, 2003 . The State Board of Education conducts another hearing and votes unanimously to authorize an election on the detachment issue. 434696-v1 6 I le I I I I I I I -I I I I I I I I 38. 39. July 16, 2003. The State Board issues its \"Order for Election\". (Exhibit 20) July 24, 2003 . The PCSSD files suit in Pulaski County Circuit Court arguing that the Detachment Statute is unconstitutional and that the petition is invalid. (Exhibit 21) 434696-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 7 I I I I I I I I - I I I I I I I I CERTIFICATE OF SERVICE On July J.(io03 , a copy of the foregoing was served via U.S. mail on each of the following : Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 434696-v1 8 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Scott Smith General Counsel Arkansas Department of Edudation #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. Mark Burnette 1010 W. Third Street Little Rock, AR 72201 CERTIFICATE OF SERVICE II On July.2~003, a copy of the foregoing was served via U.S. mail on each of the following : II I I I I I Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Ray Simon Director of the Arkansas Department of Education 4 State Capitol Mall Little Rock, Arkansas 72201-1071 Mr. Will Bond 602 W. Main Jacksonville, AR 72076 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 434696-v1 8 Mr. Mark A. Hagemeier Assistant Attorney General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Scott Smith General Counsel Arkansas Department of Edudation #4 Capitol Mall, Room 404-A Little Rock, AR 72201 Mr. Mark Burnette 1010 W. Third Street Little Rock, AR 72201 Raymond Simon Director State Board of Eaucation JoNell Caldwell, Chair Little Rock Shelby Hillman, Vice Chair Carlisle Luke Gordy Van Buren Robert Hackler Mountain Home Calvin King Marianna Randy Lawson Bentonville Ma~- Rebick u;7:'ffock Diane Tatum Pine Bluff Jeanna Westmoreland Arkadelphia REl, ... .-vED JUL 2 9 2003 OFFICE OF Arkansas D EGREGATIOH MONITORING Department of Education #4 Capitol Mall, Little Rock, AR 72201-1071 501-682-4475 July 28, 2003 Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 http:/ /arkedu.state.ar.us RE: Little Rock School District v. Pulaski County Special School District, et al. U.S. District Court No. 4:82-CV-866 Dear Gentlemen and Ms. Marshall: Per an agreement with the Attorney General's Office, I am filing the Arkansas Department of Education's Project Management Tool for the month ofJuly 2003 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. ia~ General Counsel Arkansas Department of Education SS:law cc: Mark Hagemeier RECEIVED UNITED STATES DISTRICT COURT JUL 2 9 2003 EASTERN DISTRICT OF ARKANSAS WESTERN DNISION OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAlNTIFF V. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of the ADE's Project Management Tool for July 2003. Respectfully Submitted, ~ Attorney, Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 501-682-4227 CERTIFICATE OF SERVICE I, Scott Smith, certify that on July __ , 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Mark Burnette Mitchell, Blackstock, Barnes Wagoner, Ivers \u0026amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 j.1aL~ Smit IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED JUL 2 9 2003 LITTLE ROCK SCHOOL DISTRICT, ET AL OFFICE OF PLAINTIF~SEGREGATION MONITORING V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. - IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Us_!:! the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of July 31 , 2003 l@b.!iiij1w:~b.~ffii:;~~ii!ir~B~Jli~f.~'2'-i9.ailii!li!l:ifYt.~t~d.\\ffi~ B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. - ---- - - I. FINANCIAL OBLIGATIONS (Continued) B. Include all Magnet students in the resident District's average daily membership for calculation. (Continued) 2. Actual as of July 31, 2003 ~lt.\\i;ie~iil~i~tlll\u0026amp;.i:1ir\u0026amp;liifi4nif;.$.QJ~i\u0026gt;.O~;Iif.i~:.A:t.li;\\~I~.a:r~:i~:tj_fq,r.;;fX C. Process and distribute State MFPA. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of July 31, 2003 ~1i~~~-~~91i::g91t~E~t~.td~.Yti9'0:;2.f~~I~;:~!J~.!\\~~'tr2.t\\.\"'E;~nfffri:ef1.9.f.~.6X:q?/.9~-w.~re D. Determine the number of Magnet students residing in each District and attending a Magnet School. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of July 31, 2003 ~1'9\\1~ Bi~~{~!~flilj~;i~f \u0026amp;iliklr40g:9.?lti'.ai~c(a(::JlJH~::3.0}~'bo~.f.off.Y E. Desegregation Staff Attorney reports the Magnet Operational Charge to the Fiscal Services Office. 1. Projected Ending Date Ongoing, as ordered by the Court. 2 UNITED STATES DISTRICT COURT Little Rock Division Eastern District of Arkansas JUL 3 0 2003 NOTICE JAMES W. McCORMACK, CLERK .By: ______ __,,=~- DEP CLERK LITTLE ROCK SCHOOL DISTRICT, Plaintiff vs. Case No.: 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al, Defendant ******************************************************************* Type of Case: CIVIL ** ****** ***************************** *** *************************** TAKE NOTICE that a proceeding in this case has been set for the place, date and time set forth below: ******************************************************************* Place: U. S . Courthouse 600 West Capitol Little Rock, AR Ave., Room 431 72201 Date: MONDAY, AUGUST 18, 2003 Time: 10:00 A.M. *- **************************************************************** Type of Proceeding: MOTION TO ENFORCE SETTLEMENT AGREEMENT HEARING ******************************************************************* Presiding Judge : BILL WILSON ******************************************************************* Instructions: ******************************************************************* James W. McCormack, Clerk of Court r By: JOHNSON Deput c9 Counsel of Record Dated: 07/30/03 RECEIVED JUL 3 1 2003 OFFICE OF DESEGREGATION MONITORING Fit1: ~-- tAsr~1:it g\\SiR1cr P STR1cr A2!J~, '\"\"NSAs JUL 3 0 20u3 JAMES W By: McCORMACK - , CLERK UPDATE ON THE REDESIGN OF HARRIS ELEMENTARY SCHOOL AND THEEPCLERi,; REZONING OF SCHOOLS IN THE SHERWOOD AREA OF THE Ann S. Marshall Federal Monitor PULASKI COUNTY SPECIAL SCHOOL DISTRICT July 30, 2003 Office of Desegregation Monitoring United States District Court Little Rock, Arkansas Horace R. Smith Associate Monitor This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.\u003c/dcterms_description\u003e\n \n\n\u003c/dcterms_description\u003e \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n \n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n\u003c/item\u003e\n\u003c/items\u003e"},{"id":"bcas_bcmss0837_1754","title":"Joshua intervenor's comments regarding page 148 \"evaluations\", motion to withdrawal and substitution of counsel, and Arkansas Department of Education (ADE) project management tools.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["44 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eDistrict Court, the Joshua intervenors' comments on the submission of page 148 ''evaluations''; District Court, motion to withdraw as counsel and for substitution of counsel; District Court, notices of filing, Arkansas Department of Education (ADE) project management tools; Court of Appeals, brief of appellee; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. . ,:;-:- - b.BD ED -=- u.f sM'rn1c;co,1,mr =-- !;/\\'fERN tHTRIQT ARN:\\1\\l~S IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT oF ARKANSAS APR 1 4 :og, WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. LR-:C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO . 1, ET AL. RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL . KATHERINE KNIGHT, ET AL . APR 1 ~ 2003 OFFICE OF DESEGREGATION MONITORING The Joshua Intervenors' Comments on the Submission of Page 14s \"Evaluations\" INTERVENORS INT ERVEN ORS The Joshua Intervenors comment as follows on the \"[LRSD] Notice of Fil i ng Program Evaluations Required by Paragraph c of the Court's Compliance Remedy\" and the accompanying \"evaluations.\" This court held that the LRSD did not substantially comply with sec. 2.7.1 of the Revised Plan, addressing \"Program Assessment/Program Evaluation [at 150).\" [At 168] The court noted the importance of this commitment. I find that the purpose of Sec. 2.7.1 was to make sure that the programs promised under Sec. 2. 7 actually worked to improve the academic achievement of African-American students. I further find that LRSD's substantial compliance with Sec. 2.7.1 was crucial to its commitment to improve the academic achievement of African-American students~ for, without performing a rigorous annual assessment of each of the many dozens of programs implemented under Sec. 2.7, it would be impossible to determine which programs were working and should be continued and which programs were not working and should be discontinued, modified, or replaced ~1th new programs. [At 150) The court's \"Compliance Remedy\" for the Sec. 2.7.1 violation 1 addressed in part \"program evaluations on each of the programs identified in page 148 of the Final Compliance Report.\" [At 170, 171) The court discussed the completion of these evaluations and their submission to the court and the parties, by March 15, 2003, after their approval by the LRSD school board. [At 171-72] The court also required, in effect, additional evaluations of \"each of the programs implemented under Section 2.7 to improve the academic achievement of African-American students.\" [ At 170] These materials are to be submitted on or before March 15, 2004. [At 172] This court also discussed the criteria to govern the LRSD's exiting court supervision. Because LRSD failed to substantially comply with the crucially important obligations contained in Sec. 2.7.1, .it. must remain under court supervision with regard to that section of the Revised Plan until it: Cal demonstrates that a program assessment procedure is in place that can accurately measure the effectiveness of each program implemented under sec. 2.1 in improving the academic achievement of AfricanAmerican students; ... \" [At 110) The LRSD \"Notice of Filing\" describes the LRSD' s plan to prepare \"comprehensive program evaluation[s]\" as follows: The District will prepare the following new, comprehensive evaluations: (a) Elementary Literacy, (b) Middle and High School Literacy and (c) K-12 Mathematics and Science. Each evaluation will be prepared in accordance with proposed Regulation IL-Rl and will incorporate all available student assessment data relevant to the program being evaluated. These evaluations will be submitted to the District Court on or before March 15, 2004. [Exhibit A at SJ Joshua Intervenors have raised an issue about the scope of this plan pursuant to Section 8 of the Revised Plan. The page 148 \"evaluations\" were, as noted, submitted on March 14, 2003. A review of these materials and other relevant documents 2 show that if LRSD is to \"[demonstrate} that a program assessment procedure is in place that can accurately measure the effectiveness of each program implemented under Sec. 2. 7 in improving the academic achievement of African-American students\" -- it will have to be by a future submission. In general, the documents submitted were either not evaluations, or very deficient evaluations. Joshua Intervenors offer the following examples of deficiencies identified in the page 154 \"evaluations.\" Early Literacy (Vol. 1-2] 1 Dr. Ross described the report as \"one of the best written reports from LRSD I've read.\" [At 2] He also discussed \"a number of weaknesses .... \" [l.s;l.] Dr. Ross' critique includes the following content: \"Of greatest concern overall is the writer's obvious efforts to 'prove' gap reduction even where the data support is weak or spurious.\" (At 3] \"Statistically, a very serious weakness is the lack of validity of the 'Percent Improvement' (PI) index.\" [At 3 J \"Another major statistical weakness is emphasizing the comparison of growth ratios (GR) between Band NB students .. The reason is the obvious ceiling effects on most of the measures.\" [At 4J \"Not surprisingly, on the two literacy tests that do .Il.Q.t. have low ceilings -- Writing Vocabulary and ORA -- the Growth Ratios are much less supportive of gap reduction (e.g., seep. 54, bullet 4), and could even be used by critics as showing extensions of the gap in a number of places. 11 [At 5) \"The present data are 1 This segment is based upon a critique by Dr. Ross, titled \"Review of Year 2 Evaluations.\" It was submitted to counsel _ang Mrs , Marsha 11 of ODM, by counsel for the LRSD, on October 2 s , 2 o o 2 . 3 I I I I I I I I I I II suggestive of definite early progress made by LRSD in improving - All students' literacy performance. There are also indicators of some progress in gap reduction in certain skills. However, given that we are dealing with teacher-administered tests having very low ceiling levels, the overall evidence is weaker than this report conveys. There is no reason to reduce the credibility of the findings by presenting them with such an obvious positive bias.\" [At 7] \"Conduct more studies that examine implementation quality and impacts on the school and the classroom.\" [At 8] charter school [Vol. 1-2] \"Performance data for the program evaluation were not disaggregated by race. The student body, however, was 87 percent African American.\" [Vol. 1-2 at l; Dr. Lesley) Southwest Middle School's SEDL Program [Vol. 1-2) - The \"evaluation\" documents produced by the Southwest Educational Development Lab contain neither a detailed description of the program implemented at Southwest Middle School, nor student achievement data. [Vol. 1-2 at 243-63] Collaborative Action Plan [Vol. 1-2] \"Although the 249-page study produced by SEDL that evaluated the project included student achievement data, those data were not disaggregated by race, and LRSD' s short-term ( one year) participation in the project would not predict that the involvement of this relatively small group of parents and community volunteers would result in improved student performance.\" [Vol. 1-2 at 528; Dr. Lesley) 4 ..... Extended Year schools [Vol. vol. 4J \"Unfortunately, the present evaluation design does not seem sufficiently sensitive to detect effects that might be attributable to EYE. specifically, usage of whole-school data compared descriptively to district norms gives only a very surface examination of the schools' progress, with susceptibility to contamination by student mobility, differences in SES, etc.\" (Exh. Bat S: Dr. Ross] \"The external evaluator's conclusion was that 'Unfortunately, the limited nature of the original design and existing data do not afford us an opportunity to answer in a rigorous manner the key evaluation question of_ the extent of impact of the initiative on black student performance.'\" [Vol. 4 at 1732; Dr. Lesley: see also Vol. 4 at 1813 (Youth Policy Research Group, Inc.] Middle School Implementation [Vol. 4] \"The study conducted by the external evaluator did not attempt to draw any conclusions related to this research question [impact on African-American achievement] since the student performance data available for the study were 'baseline', and there are serious questions about the appropriateness of the achievement measures and about the validity of some of the other performance outcome measures.\" [Vol. 4 at 1870; Dr. Lesley] \"The data presented in the original report does not support the interpretation of program effects on student performance. It provides a baseline for examining future effects, but needs to be extended and verified.\" [Vol. 4 at 1911; Youth Policy Research 5 I \\ . Group, Inc. ) ~lementary _summer school [Vol. 3] There is a lack of II implementation data to describe the program strategies and the degree to which they were actually used by teachers.\" There is not \"an adequate control group or norms to which the achievement scores of the summer school students could be compared.\" (Eh.Bat 3; Dr. Ross] \"Unfortunately, there are no additional details in the evaluation that describe the precise treatment afforded the students in the program. Missing is any indication of precisely how much of the curriculum was delivered, how and when it was del i vered, and neither by whom, nor its relationship to the previously identified objectives.\" [Vol. control group or norms \" [Vol. Education and Management Associates, Inc.] HIPPY [Vol. 3 J at--] \"No adequate at -- ] [ By Quality \"A limitation of the study, wh i ch unfortunately cannot be remedied retroactively, is the lack of implementation data to describe the fidelity with which HIPPY program components were actually used.\" [Eh . Bat 4; Dr. Ross] \"Conclusions are difficult due to limitations of the study.\" [Vol. 3. at 1554; Dr. Lesley] \"A third weakness is the gap between the HIPPY experience and the achievement scores analyzed .... By that time, several years had elapsed subsequent to the HIPPY interventions.\" [Vol. J at 1567; Dr. Ross] 6 campus Leadership Teams [Vol. 3] \" However, the 'evaluation data' collected to date consist of only results from two district-wide surveys that assessed team members' reactions to various activities. No information exists to verify the representatives of the samples, the validity of the data collection in general, or the implementation of the CLTs at the various schools.\" [Eh. Bat 5; Dr. Ross) \"These surveys were not intended to be a program evaluation., although they were mistakenly characterized as such in the District's compliance report to the court. No student performance data were collected, and, therefore, no conclusions could be drawn as to whether the Campus Leadership Teams' work has resulted in improved academic achievement for any students, nor specifically for African American students.\" [Vol. 3 at 1256; Dr. Lesley] \"There was no formal evaluation of CLT by the LRSD.\" [Vol. 3 at 1259; Dr.. RossJ Lyceum scholars Program [Vol. 4) \"Approximately one-half of the students participating in this small program ( 8 to 10 students total) were African American. Because the numbers were so small, neither performance data nor survey data were disaggregated by race. Neither the staff study nor that of the external evaluator could determine whether this program had any positive benefit on the academic performance of African American students.\" [Vol.4 at 1607; Dr. Lesley; see also at 1635 (inadequate description of treatment provided students in program; 7 Dr. Ross)] onward to Excellence (Vol. 3) The program \"was never fornally achievement data reports sent by the evaluated, except for principal to ADE.\" As \"implementation data are lacking,\" \"if positive or negative results were found, it would be impossible to determine whether OTE or numerous other factors were the main cause.\" [Eh.Bat 4; Dr. Ross) \"In view of these factors, there is no basis for evaluating the 'study,' since none existed.\" [Vol. 3 at 1217; Dr. Ross] Vital Link [Vol. 3] \"Further, the evaluation study conducted was so limited (a brief post-test only, closed-ended survey) that the policy implications of the results are minimal and even potentially misleading if derived.\" [Eh.Bat Jr Dr. Ross] There is \"(i]nsufficient description of the program and its implementation.\" There is a \"[l)ack of pre-program (pretest) data for judging change following program completion.\" \"No examination of results for different subgroups (e.g., by ethnicity) . 11 [Vol.3 at 1542: Dr. Ross) 8 conclusion The need for high quality evaluations, if the LRSD is to exit court supervision, is clear. Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Mass. 405900 Attorney at Law J n John P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 Ark. 64046 1100 North University, Suite 240 Little Rock, AR 72207 501.-663-9900 9 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleadilf.: been mailed, postage pre-paid, to all the counsel of record this .-~ (i._ day of ,t, , fJ , ?oc:S, ~ ~ ?fa ~~~ ohnw.Wall\u0026lt;er .1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MOTION TO WITHDRAW AS COUNSEL AND FOR SUBSTITUTION OF COUNSEL RECEIVED APR 2 5 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS Separate Defendant Arkansas Department of Education, by and through their attorneys, Attorney General Mike Beebe and Assistant Attorney Mark A. Hagemeier, for their Motion to Withdraw as Counsel and for Substitution of Counsel, state: 1. Assistant Attorney General Colette D. Honorable left state employment effective April 10, 2003. 2. This matter has been reassigned to Assistant Attorney General Mark A. Hagemeier, who now represents Defendants and should be substituted as counsel of record. 3. Defendant requests that the Court and parties direct all future services and correspondence to Mark A. Hagemeier. WHEREFORE, premises considered, Defendants respectfully request that the Court grant the Motion to Withdraw as Counsel and for Substitution of Counsel and that Mark A. Hagemeier be substituted as their counsel of record . .l By: Respectfully Submitted, MIKE BEEBE Attorney General Assistant Attorney eral 323 Center Street, Suite 200 Little Rock, AR 72201-2610 (501) 682-3643 CERTIFICATE OF SERVICE I, Mark A. Hagemeier, certify that on April 24, 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mark A. Hagemeier 2 --- ..... . .)_ RECEIVED THE ATTORNEY GENERAL STATE OF ARKANSAS MIKE BEEBE APR 2 5 2003 OFFICE OF DESEGREGATION MONITORlNG Mark A. Hagemeier Assistant Attorney General Mr. M. SamuelJones,m Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. Mc.inley, Suite 465 Little Rock, AR 72205 April 24, 2003 Direct dial: (501) 682-3643 E-mail: mark.hagemeier@ag.state.us Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 RE: Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. et al. U.S. Dist. Ct. No. 4:82-CV-866 Dear Gentlemen and Ms. Marshall: Enclosed please find a copy of Separate Defendant Arkansas Department of Education's Motion to Withdraw as Counsel and for Substitution of Counsel, Notice of Filing and ADE's Project Management Tool sent for filing in the above-referenced matter. MAH/jle Very truly yours, ~.){ . MARK A. HAG~R Assistant Attom~::ral 323 Center Street Suite 200 Little Rock, Arkansas 72201 (501) 682-2007 FAX (501) 682-2591 Internet Website http://www.ag.state.ar.us/ Cc: Mr. Ray Simon D. Scott Smith Mr. Louis Ferren Ms. Charity Smith .l UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED APR Z 5 1003 OFFICE OF DESEGREG\"i\\OM MOMliORlMG LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of ADE's Project Management Tool for March 2003. Respectfully Submitted, MIKE BEEBE Attorney General Assistant Attorney eneral 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 682-3643 Attorney for Arkansas Department of Education #94127 .l CERTIFICATE OF SERVICE I, Mark A. Hagemeier, certify that on April 24, 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, ID Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mark A. Hagerne'e 2 .l IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KA THERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of April 30, 2003 B. Include all Magnet students in the resident District's average daily membership for calculation. 1 . Projected Ending Date Last day of each month, August - June. Raymond Simon Director s: ate Board of -Education Shelby Hillman, Chair Carlisle JoNell Caldwell, Vice Chair Uttfe Rock Luke Gordy Van Buren Robert Hackler Mountain Home Peggy Jeffries Fort Smith Calvin King Marianna - ane Rebick Uttfe Rock Lewis Thompson, Jr. Texarkana Jeanna Westmoreland Arkadelphia Arkansas Department of Education #4 Capilol Mall, Liltle Rock, AR 72201-1071 501-682-4475 May 30, 2003 MAY 3 1 2003 Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark OFFICE OF DESEGREGATION MONITORING Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 RE: Little Rock School District v. Pulaski County Special School District, et al. U.S. District Court No. 4:82-CV-866 Dear Gentlemen and Ms. Marshall: Per an agreement with the Attorney General's Office, I am filing the Arkansas Department of Education's Project Management Tool for the month of April 2003 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. General Counsel Arkansas Department of Education SS:law cc: Mark Hagemeier UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT .PLAINTIFF V. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al DEFENDANTS- NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of the ADE's Project Management Tool for April 2003. Respectfully Submitted, j~1t~~ Scott Smith, 251 Attorney, Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 501-682-4227 CERTIFICATE OF SERVICE I, Scott Smith, certify that on May 30, 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr.M. SamuelJones,III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Scott Smith IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. - IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1 . Projected Ending Date Last day of each month, August - June. 2. Actual as of May 31, 2003 !ii!ii~h.tii\\ii~,i~miiii%~iliti!!1f.1,a11gy1~t;~r'i\u0026amp;~ B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NOS. 02-3867 AND 03-1147 RECEIVED - '/ /rJ d - (} It 'v?:h d, JUN0 1 8 2003 - ., tJZ l l'VI OFFICE OF DESEGREGATION MONITORING MRS. LORENE JOSHUA, et al. !JNIUO!INOW N0l!V93H93S3a :10 3~1:1:10 Appellants EOOZ 8 1 Nnr v. 03Al3~3H LITTLE ROCK SCHOOL DISTRICT Appellee Appeal from the United States District Court for the Eastern District of Arkansas Honorable William R. Wilson, Jr., District Judge BRlEF OF APPELLEE CHRISTOPHER HELLER JOHN C. FENDLEY, JR. FRlDA Y, ELDREDGE \u0026amp; CLARK 400 West Capitol Avenue, Suite 2000 Little Rock, Arkansas 7220 l (501) 376-2011 Attorneys for Appellee SUMMARY AND REQUEST FOR ORAL ARGUMENT This appeal arises out of the interdistrict desegregation case filed in 1982 by the Little Rock School District (\"LRSD\") against the Pulaski County Special School District (\"PCSSD\"), the North Little Rock School District (''NLRSD\") and the State of Arkansas. Mrs. Lorene Joshua, et al., (\"Joshua\") intervened during the remedy phase after a liability finding in favor of the LRSD against all of the defendants. In 1998, the LRSD and Joshua agreed to anew desegregation plan for the LRSD, lmown as the \"Revised Plan.\" The Revised Plan entitled the LRSD to a declaration of unitary status if it substantially complied with the plan and no party objected. The - Revised Plan provided that any party objecting would bear the burden of proof. Joshua objected to the LRSD being granted unitary status. Hearings were held on Joshua's objections. The district court found that the LRSD had substantially complied with all but one section of the Revised Plan and granted the LRSD partial unitary status. Joshua then moved to disqualify the Honorable William R. Wilson, Jr. based on 28 U.S.C. 455(b)(2). That motion was denied. Joshua appeals the district court's grant of partial unitary status and denial of the motion to disqualify. The LRSD respectfully requests at least thirty minutes of oral argument due to length and complexity of the proceedings below and the substantial public interest in this case. Raymond Simon Director s: ate Board of Education Shelby Hillman, Chair Carlisle JoNell Caldwell, Vice Chair Little Rock Luke Gordy Van Buren Robert Hackler Mountain Home Peggy Jeffries Fort Smith Calvin King Mananna eRebick ock Lewis Thompson, Jr. Texarkana Jeanna Westmoreland Arkadelphia Arkansas Department of Education #4 CapiJol Mall, LiJtle Rock, AR 72201-1071 501-682-4475 http:/ larkedu.state.ar.us RECEIVED June 30, 2003 JUL 1- 2003 Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. Christopher Heller OFFICE OF Friday, Eldredge \u0026amp; Clark DESEGREGATION MONITORING Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 RE: Little Rock School District v. Pulaski County Special School District, et al. U.S. District Court No. 4:82-CV-866 Dear Gentlemen and Ms. Marshall: Per an agreement with the Attorney General's Office, I am filing the Arkansas Department of Education's Project Management Tool for the month of June 2003 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. Sincerely, (} r} lJL~ ~~L Scott Smith General Counsel Arkansas Department of Education SS:law cc: Mark Hagemeier UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION RECEIVED JUL 1 - 2003 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of the ADE's Project Management Tool for June 2003. Respectfully Submitted, 9-\u0026gt;~vtc LtiA b f v,) Scott Smith, #92251 7 Attorney, Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 501-682-4227 CERTIFICATE OF SERVICE - I, Scott Smith, certify that on June 30, 2003, I caused the foregoing document to be served by depo~iting a copy in the United States mail, postage prepaid, ad~~~ ;VED each of the followmg: tiC\\., Cl Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 West Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 JUL 1 - 2003 OFFICE OF DESEGREGATION MONITORING RECEIVED IN THE UNITED STATES DISTRICT COURT JUL 1 - 2003 EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the AD E's progress against timelines presented in the Plan. - IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of June 30, 2003 l!i.iii~ll~1111.~ili!lliil~lf~ili!iii!lrs.itiwct:.lli~ B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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IN THE UNITED STATES COURT OF APPEALS FOR THE'EIGHTH CIRCUIT RECEIVED MAR - 7 2003 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT APPELLEE VS. NOS. 02-3867 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. 03 -1147 MOTION FOR ADDITIONAL TIME TO FILE BRIEF AND RELATED MATERIALS DEFENDANTS APPELLANTS INTER VEN ORS The Joshua Intervenors respectfully move for an order extending the time for the filing of their consolidated brief, addendum and appendix for 14 days (with corresponding adj ustments to the other elemerts of the schedule). The basis for this motion is as fo llows: Joshua Intervenors' lead counsel John W. Walker began a trial, as defense counsel in Case No. CR 00:40, United States District Court, Eastern District of Arkansas, before the Honorable George Howard, Jr. on March 3, 2003. It appears that this trial will not conclude until March 14, 2003. Preparation for this trial and the trial have prevented lead counsel from working with co-counsel Robert Pressman, as well as Norman Chachkin, to complete the consolidated brief. WHEREFORE, the Joshua Intervenors respectfully pray that the Court grant the requested extension. 22 Locust A venue Lexington, MA 02421 (781) 862-1955 W. WALKE , .. 1 723 Broadway Little Rock, Arkansas 72206 (501) 3 74-3 758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 North University, Suite 240 Little Rocle Arkansas 72207 (501) 663-9900 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent by fax and U.S. Mail, postage prepaid to the following counsel of record, on this~ day of ~' 2003: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2000 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union Na.tivnal Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201 -3472 Mr. Richard Roachell ROA CHELL LAW FIRM 415 North McKinley, Suite 465 Little Rock, Arkansas RECEIVED MAR 12 2003 OFACEOF IN THE UNITED STA TES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION A DESEGREGATION MONITORING W LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LORENE JOSHUA, et al. KA THERINE KNIGHT, et al. f.fj\" } : ,:J b~~-.. . t- -- --~ .. \"-- - ..... .. ...... iTORING ORDER Us oisTRICT COURT EASTERN DISTRICT ARKANSAS MAR 1 1 2003 JAMES W. McCOP.MACK, CLERK By: OEP CLERK PLAINTIFF DEFENDANTS INTERVENORS INTER VEN ORS Now pending is PCSSD's Motion RE Portable Building at Sylvan Hills Middle School (doc. no. 3739). Joshua Intervenors have responded to the motion, indicating that they do not oppose the motion. The motion indicates that the band room at Sylvan Hills Middle School is plagued with standing water and requests permission to temporarily lease a portable building for use as a band room. This motion is GRANTED, and PCSSD may lease and use the portable building as requested through the end of the current school year. ~ IT IS SO ORDERED this/J!::aay of March, 2003. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 ANQ.(__OJ3. 79(a) FRCP. ON 3-l/-O 3 BY~ S?:,99d'. 74 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL RECEIVED 1/ul\"Jd- ;Jz/rvue rl MAR 1 4 2003 DEFENDANTS INTER VEN ORS INTERVENORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL OFFICE OF DESEGREGATION MONITORING PLAINTIFF'S NOTICE OF FILING PROGRAM EVALUATIONS REQUIRED BY PARAGRAPH C OF THE COURT'S COMPLIANCE REMEDY Plaintiff Little Rock School District (\"LRSD\") for its Notice of Filing Program Evaluations Required by the Court's Order of September 13, 2002 states: 1. On September 13, 2002, the District Court issued its Order finding that the LRSD had substantially complied with all areas of the Revised Desegregation and Education Plan (\"Revised Plan\"), with the exception Revised Plan 2.7.1. The Court's Order set forth a detailed Compliance Remedy as to Revised Plan 2. 7 .1. Paragraph C. of the Compliance Remedy stated: LRSD must use Dr. Nunnerly or another expert from outside LRSD with equivalent qualifications and expertise to prepare program evaluations on each of the programs identified on page 148 of the Final Compliance Report. I will accept all program evaluations that have already been completed by Dr. Nunnerly or someone with similar qualifications and approved by the Board. All program evaluations that have not yet been completed on the remaining programs identified on page 148 of the Final Compliance Report must be prepared and approved by the Board as soon as practicable, but, in no event, later than March 15, 2003. In addition, as these program evaluations are prepared, LRSD shall use them, as part of the program assessment process, to determine the effectiveness of those programs in improving African-American achievement and whether, based on the evaluations, any changes or modifications should be made in those programs. In addition, LRSD must use those program evaluations, to the extent they may be relevant, in assessing the effectiveness of other related programs. 2. On October 10, 2002, the LRSD Board of Directors adopted a Compliance Plan - designed to meet the requirements of the Court's Compliance Remedy. A copy of the Compliance Plan is attached hereto as Exhibit A. 3. As to Paragraph C of the Compliance Remedy, the LRSD concluded that the following evaluations had already been completed as required by Paragraph C and only needed to be submitted to the Board for approval: Early Literacy, Mathematics and Science, Charter School, English-as-a-Second Language, Southwest Middle School's SEDL Program and Collaborative Action Team. The Charter School and Early Literacy evaluations were approved by the Board on October 24, 2002. The Southwest Middle School's SEDL Program, 2000 and 2001 ESL and Collaborative Action Team evaluations were approved by the Board on November 21, 2002. The Math and Science and the 2002 ESL evaluations were approved by the Board on December 19, 2002. These evaluations are bound together in volumes I and II attached. 4. The LRSD concluded that the following evaluations needed to be completed by an outside expert before being submitted to the Board for approval: Extended Year Schools, - Middle School Implementation, Elementary Summer School, HIPPY, Campus Leadership Teams (\"CLT\"), Lyceum Scholars Program, Onward to Excellence and Vital Link. The LRSD sought guidance from Dr. Steven Ross, a desegregation and education expert approved by Joshua. Dr. Ross prepared, \"Guidelines for Completing Eight Program Evaluations in the Little Rock School District,\" attached hereto as Exhibit B. The LRSD subsequently contracted with experts, including Dr. Ross, to complete the evaluations in accordance with Dr. Ross' guidelines. The Onward to Excellence, CLT, Vital Link and HIPPY evaluations were approved by the Board on February 13, 2003. The Lyceum Scholars Program, Elementary Summer School, Extended Year Education were approved by the Board on February 27, 2003. These evaluations are bound together in volumes III and IV attached. 2 WHEREFORE, the LRSD submits to the Court program evaluations on each of the - programs identified on page 148 of the Final Compliance Report as required by Paragraph C of the Compliance Remedy. Respectfully submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the Btrited Stat~s mail on March 14, 2003: - ~,,L cklQ Mr. John W. Walker Mr. Richard Roachell JOHN W. WALKER, P.A. Roachell Law Firm 1723 Broadway Plaza West Building Little Rock, AR 72201 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 F:IHOME\\FENDLEY\\LRSD 200 I \\dcs-uniwy-March 15-2003. wpd Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Collette D. Honorable Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, AR 72201 {[-~i ~op hcer H.e~ller t\u0026lt;~ 3 Little Rock School District Compliance Plan Revised Plan 2. 7 .1 Approved by the Board on October 10, 2002 \"\" EXHIBIT I A B. C. LRSD must maintain written records regarding its assessment of each of those programs. These written records must reflect the following information: (a) the written criteria used to assess each program during the 2002-03 school year and the first semester of the 2003-04 school year; (b) the results of the annual assessments of each program, including whether the assessments resulted in program modifications or the elimination of any programs; and ( c) the names of the administrators who were involved with the assessment of each program, as well as at least a grade level description of any teachers who were involved in the assessment process (e.g., all fourth grade math teachers; all eighth grade English teachers, etc.). LRSD must use Dr. Nunnerly2 or another expert from outside LRSD with equivalent qualifications and expertise to prepare program evaluations on each of the programs identified on page 148 of the Final Compliance Report. I will accept all program evaluations that have already been completed by Dr. Nunnerly or someone with similar qualifications and approved by the Board. All program evaluations that have not yet been completed on the remaining programs identified on page 148 of the Final Compliance Report must be prepared and approved by the Board as soon as practicable, but, in no event, later than March 15, 2003. In addition, as these program evaluations are prepared, LRSD shall use them, as part of the program assessment process, to determine the effectiveness of those programs in improving African-American achievement and whether, based on the evaluations, any changes or modifications should be made in those programs. In addition, LRSD must use those program evaluations, to the extent they may be relevant, in assessing the effectiveness of other related programs. * * * F. On or before March 15, 2004, LRSD must file a Compliance Report which documents its compliance with its obligations under 2.7.1. Any party, including Joshua, who wishes to challenge LRSD's substantial compliance with 2. 7 .1, as specified above, may file objections with the court on or before April 15, 2004. Thereafter, I will decide whether the LRSD has substantially complied with 2. 7 .1, as specified in the Compliance Remedy, and should be released from all further supervision and monitoring. 2The Court is clearly referring to Dr. John Nunnery. 2 Board-Approved Compliance Plan On October 10, 2002, the Board adopted this Compliance Plan to meet the requirements of the District Court's Compliance Remedy. Pursuant to this Compliance Plan, the LRSD will: 1. Continue to administer student assessments through the first semester of 2003-04; 2. Develop written procedures for evaluating the programs implemented pursuant to Revised Plan 2.7 to determine their effectiveness in improving the academic achievement of African-American students; 3. Maintain written records of ( a) the criteria used to evaluate each program; (b) the results of the annual student assessments, including whether an informal program evaluation resulted in program modifications or the elimination of any programs; and (c) the names of the administrators who were involved with the evaluation of each program, as well as at least a grade level description of any teachers who were involved in the evaluation process; 4. Prepare a comprehensive program evaluation of each academic program implemented pursuant to Revised Plan 2. 7 to determine its effectiveness in improving the academic achievement of African-American students and to decide whether to modify or replace the program; and 5. Submit for Board approval the program evaluations identified on page 148 of the LRSD's Final Compliance Report that have been completed, and complete, with the assistance of an outside expert, the remaining evaluations identified on page 148 of the LRSD's Final Compliance Report. Each element of the Compliance Plan is discussed in more detail below. 1. Continue to administer student assessments through the first semester of 2003-04. The LRSD will implement the 2002-03 Board-approved assessment plan. The 2002-03 Board-approved assessment plan calls for the administration of the following student assessments in English language arts and mathematics: Kindergarten Grade 1 Grade 2 Observation Surveys ( 5) Developmental Reading Assessment Observation Surveys (5) Development Reading Assessment Observation Surveys (3) 3 Grade 4 Grade 5 Grade 6 Grade 7 Grade 8 Grades 7-10 Grades 9-11 Grade 10 Grade 11 Development Reading Assessment Norm-referenced test to be identified for gifted/talented screening Benchmark Literacy examination Benchmark Mathematics examination SAT9 Total Battery Benchmark Literacy examination Benchmark Mathematics examination SAT9 Total Battery Benchmark Literacy examination Benchmark Mathematics examination End-of Course Algebra I examination End-of Course Geometry examination SAT9 Total Battery End-of-Level Literacy examination All of these assessments are administered in the spring. Consequently, the final student assessment before March 15, 2004, will be administered in the spring of 2003. 2. Develop written procedures for evaluating the programs implemented pursuant to 2.7 to determine their effectiveness in improving the academic achievement of African-American students. The Board approved IL-Rl in conjunction with approving this Compliance Plan. IL-Rl sets forth the written procedures for evaluating the 2. 7 programs. 3. Maintain written records of (a) the criteria used to evaluate each program; (b) the results of the annual student assessments, including whether an informal program evaluation resulted in program modifications or the elimination of any programs; and ( c) the names of the administrators who were involved with the evaluation of each program, as well as at least a grade level description of any teachers who were involved in the evaluation process. IL-Rl mandates that the criteria used to formally evaluate a program be identified as the research questions to be answered, the first of which will be, \"Has this curriculum/instruction program been effective in improving and remediating the academic achievement of AfiicanAmerican students?\". Recommended program modifications and the members of the evaluation team are routinely included in formal evaluations. The Compliance Committee originally proposed IL-R2 to cover informal evaluations not 4 The District Court's Compliance Remedy On September 13, 2002, the District Court issued its Memorandum Opinion (hereinafter \"Opinion\") finding that the Little Rock School District (\"LRSD\") had substantially complied with all areas of the Revised Desegregation and Education Plan (\"Revised Plan\"), with the exception Revised Plan 2.7.1. Section 2.7.1 provided: LRSD shall assess the academic programs implemented pursuant to Section 2.71 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. The District Court's Opinion set forth a detailed \"Compliance Remedy\" to be implemented by the LRSD. The Opinion first stated: Because LRSD failed to substantially comply with the crucially important obligations contained in 2. 7 .1, it must remain under court supervision with regard to that section of the Revised Plan until it: (a) demonstrates that a program assessment procedure is in place that can accurately measure the effectiveness of each program implemented under 2. 7 in improving the academic achievement of African-American students; and (b) prepares the program evaluations identified on page 148 of the Final Compliance Report and uses those evaluations as part of the program assessment procedure contemplated by 2.7.1 of the Revised Plan. The Opinion then outlined the \"details\" of the Compliance Remedy as follows: A. For the entire 2002-03 school year and the first semester of the 2003-04 school year, through December 31, 2003, LRSD must continue to assess each of the programs implemented under 2.7 to improve the academic achievement of African-American students. LRSD now has over three years of testing data and other information available to use in gauging the effectiveness of those programs. I expect LRSD to use all of that available data and information in assessing the effectiveness of those programs and in deciding whether any of those programs should be modified or eliminated. 1Revised Plan 2.7 provided, \"LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan.\" 1 covered by IL-R2. However, the administration decided that IL-R2 was unnecessary and would be redundant of information to be included in the evaluations prepared pursuant to IL-Rl. Rather than a separate written record, the program description in evaluations prepared pursuant to IL-Rl will include a description of program modifications made during each year of implementation satisfying the requirements of Paragraph B of the Compliance Remedy. As to the results of annual student assessments, the LRSD will continue to maintain a computer database with the results of annual students assessments administered pursuant to the Board-approved assessment plan. 4. Prepare a comprehensive program evaluation of each academic program implemented pursuant to 2.7 to determine its effectiveness in improving the academic achievement of African-American students and to decide whether to modify or replace the program. The District will prepare the following new, comprehensive evaluations: (a) Elementary Literacy, (b) Middle and High School Literacy and (c) K-12 Mathematics and Science. Each evaluation will be prepared in accordance with proposed Regulation IL-Rl and will incorporate all available student assessment data relevant to the program being evaluated. These evaluations will be submitted to the District Court on or before March 15, 2004. 5. Submit for Board approval the program evaluations identified on page 148 of the LRSD's Final Compliance Report that have been completed, and complete, with the assistance of an outside expert, the remaining program evaluations identified on page 148 of the LRSD's Final Compliance Report. The following evaluations will be submitted for Board approval without additional work: Early Literacy, Mathematics and Science, Charter School, ESL, Southwest Middle School's SEDL Program and CAT. If approved by the Board, they will be submitted to the District Court on or before March 14, 2003. The following evaluations will be \"completed\" by an outside expert and then be submitted for Board approval: Extended Year Schools, Middle School Implementation, Elementary Summer School, HIPPY, Campus Leadership Teams (\"CLTs\"), Lyceum Scholars Program, Onward to Excellence and Vital Link. These evaluations will be completed as follows: Extended Year Schools. An outside expert will be retained to review the report and, if possible, draw conclusions and make recommendations based on the existing data. Middle School Implementation. An outside expert will be retained to rewrite the report 5 and, if possible, prepare an evaluation based on the existing data. - Elementary Summer School. An outside expert will be retained to review the report and, if possible, draw conclusions and make recommendations based on the existing data. HIPPY. An outside expert will be retained to review the report and, if possible, draw conclusions and make recommendations based on the existing data. CLTs. An outside expert will be retained to review the CLT survey data and, if possible, prepare an evaluation based on the existing survey data. Lyceum Scholars Program. An outside expert will be retained to review the report and, if possible, draw conclusions and make recommendations based on the existing data. Onward to Excellence. An outside expert will be retained to review the report and, if possible, draw conclusions and make recommendations based on the existing data. Vital Link. An outside expert will be retained to review the report and, if possible, draw conclusions and make recommendations based on the existing data. 6 Action Plan Timeline The Compliance Plan will be implemented in accordance with the following timeline. :- - -- ---- ,tl{trii-ite r\\n(:;fmi. 'T(:.l.'j ! l 0 fft~-; i 111:t1 ;:, 1 ---- --- -c~--- - -- - - -------- - - - j 1. Place 2002-03 Program October 24, 2002 Ken James Evaluation Agenda on the Bonnie Lesley Board's agenda for review and approval. 2. Place on Board agenda October 24, 2002 Bonnie Lesley for approval two previously Linda Watson presented program evaluations ( early literacy, and charter school). 3. Place on Board agenda November 2002 Bonnie Lesley for approval the evaluations of Southwest Middle School's SEDL program and the Collaborative Action Team (also conducted by SEDL). 4. Place on Board agenda November 2002 Bonnie Lesley for approval the previously Karen Broadnax presented ESL program evaluations for 1999-2000 and 2000-01, plus the new evaluation for 2001-02. 5. Place on Board agenda December 2002 Bonnie Lesley for approval the three Vanessa Cleaver previously presented Dennis Glasgow program evaluations for the NSF-funded CPMSA program, plus the new Year 4 report for 2001-2002. 6. Issue Request for Mid-October 2002 Bonnie Lesley Proposals (RFPs) from Darral Paradis available external experts to review and complete the eight remaining program evaluations listed on page 148. 7 r--- .. -- .,..c--r~;Jff~- -- ----- - r -i\"f~]:i:~1: -- ---- --:r . - - - m:-~f!}Ollt.'ili'i1f! r ~II 1, - - . --- --- --- .. - . - --- ________ J --- --- - - . - J 7. Form a screening team to Late October 2002 determine recommendations to the Superintendent for designating external experts to review and complete the eight remaining program evaluations listed on page 148. 8. Select and negotiate consulting contracts with designated external experts. 9. Assign appropriate staff to each external expert to provide needed information, data, access to program staff, etc. 10. Monitor the work to ensure timely completion. 11. As each paper is completed and ready for circulation, send copies to ODM and Joshua for their review and comments. 12. As each paper is completed, place on the Board's agenda the item to be reviewed and approved. 13. Write Interim Compliance Report relating to programs on page 148 to be completed. 14. Establish staff teams for each of the three programs on the Board's Program Evaluation Agenda to be completed for 2002-2003 (Elementary Literacy, Secondary Literacy, and K- 12 Mathematics/ Science). Mid-November 2002 Mid-November 2002 Mid-November 2002-February 2003 December 2002-February 2003 December 2002- February 2003 March 15, 2003 March 1, 2003 8 Ken James Compliance Team Bonnie Lesley Ken James Bonnie Lesley Bonnie Lesley Bonnie Lesley Ken James Bonnie Lesley Attorneys Compliance Committee Bonnie Lesley ~ - , ... - ~~~{ITif[ ., - --- 7'fff.ii-.ffuy~ ~ 11)'111,.\u0026lt;11ii1fiT I ---- - -- --- -- ----~L...~_:_------~'-- - --- . - - - . . j 15. Publish RFPs to March 1, 2003 Bonnie Lesley identify external experts to Darral Paradis serve on each of the two staff teams for the Board's Program Evaluation Agenda (K-12 mathematics/ science external experts are provided by NSF). 16. Establish consulting Late March 2003 Bonnie Lesley contracts with the two external experts required for the Elementary Literacy and Secondary Literacy program evaluations. 17. Train each program May 2003 Bonnie Lesley evaluation team, including the external expert, on the requirements of the approved Compliance Plan and IL-R. 18. Monitor the completion May- October 2003 Bonnie Lesley of the work on all three program evaluations required in the Board's Program Evaluation Agenda. 19. Send copies of the With October 2003 Board Ken James completed Elementary agenda packet Bonnie Lesley Literacy program evaluation to ODM and Joshua for information. 20. Complete the October board meeting, Bonnie Lesley evaluation of the 2003 Pat Price Elementary Literacy program and place on the Board's agenda for approval. 9 - -~\\1ifftnt - I' '1tfurr_-gJt,~ -- 'f\u0026lt;[~f!(ofti:..'llhinE\u0026lt; i -- -- --- , - --- ---- - _j --- --- ------ -- - ------- - - _,, ,_ - j 21. Send copies of the With November 2003 Board Ken James Secondary Literacy program agenda packets Bonnie Lesley evaluation to ODM and Joshua for information. 22. Complete the November board meeting, Bonnie Lesley evaluation of the Secondary 2003 Pat Price Literacy program and place on the Board's agenda for approval. 23 . Send copies of the With December 2003 Board Ken James completed CPMSA program agenda packet Bonnie Lesley evaluation to ODM and Joshua for information. 24. Complete the five-year December board meeting, Bonnie Lesley evaluation of the CPMSA 2003 Vanessa Cleaver project (science and Dennis Glasgow mathematics) and place on the Board's agenda for approval. 25. Write Section 2.7.1 March 15, 2004 Ken James Final Compliance Report Attorneys for federal court and file Compliance Team with Court. 1 Guidelines for Completing Eight Program Evaluations in Little Rock School District Prepared by Steven M. Ross, Ph.D. The present guidelines are based on my review of the Revised Compliance Plan, the LRSD standards for program evaluation, and evaluation report drafts and associated materials related to the eight programs identified as requiring \"final\" evaluation reports. My analysis of this material, combined with my experiences as an educational researcher and familiarity with the Joshua case as it affected LRSD, was influenced by the following assumptions: Invalid or questionable evaluation results can be much more detrimental than helpful to efforts to improve educational practices, and should not be disseminated without strong cautions and qualifications. Accordingly, studies that lack proper controls against bias or contamination from extraneous factors (e.g., differential sampling, history, diffusion of treatments) have limited value for guiding policies. Program evaluations that focus predominately on student achievement outcomes while lacking sufficient implementation data have reduced value due to inability to determine the nature of the \"treatment.\" The study will also fail to inform policymakers about the practicality of the program, how it was used and reacted to by stakeholders, or whether and/or how it needs to be improved to impact atrisk learners. Evaluations of programs that have been discontinued in the district are of much less interest relative to ones that are presently being implemented or informing ongoing practices. To raise the achievement of African American students in LRSD, attempting to resuscitate existing studies that have insufficient data available, limited relevance to current practices, or require substantial time and resources with little promise of yielding useful information for policy decisions would be less productive than employing the \"lessons learned\" from the prior evaluation work to support high quality and informative future studies. One such lesson is that the LRSD research department (formerly PRE) was understaffed to perform evaluations of the quality and quantity needed. Based on the above assumptions, I will recommend below a basic strategy for the third-party evaluators to use in preparing the eight identified evaluations for approval by the school board. Four of the evaluations concern programs that are no longer in use by LRSD and have limited or no relevance to programmatic decisions (Lyceum Scholars, Elementary Level Summer Schools, Vital Link, and Onward to Excellence). Of the remaining four evaluations, two have limited available data (Middle School Transition and Campus Leadership Teams) that, even with supplementary analyses, would not permit confident (valid) decisions to be made about program effectiveness 1 ' EXHIBIT B 2 in general or about African American student achievement resulting from program participation. A seventh evaluation (Extended Year Education) could possibly yield informative evidence about an ongoing program, but to be sufficiently refined would require time and resources extending significantly beyond the current conditions for project completion. An eighth evaluation (HIPPY) also deals with an ongoing program, but unlike the others could possibly provide useful evidence through revisions completed within the available time frame. Accordingly, the HIPPY report is currently being rewritten by Dr. Ed Williams from LRSD. The suggested plan for the third-party evaluators is presented below followed by a brief review of each evaluation. A. Submit the current evaluation report as an attachment to a supplemental document as described in B-D. B. The supplement should begin with an expanded description of the program, its goals, and its history in LRSD. It should then describe the evaluation methodology and summarize and interpret the key findings. C. Most importantly, the supplement should discuss the limitations (and any strengths where indicated) of the evaluation with regard to: (a) informing current practices in LRSD; (b) using appropriate methodology; and (c) addressing student achievement effects, especially in reference to African American students. D. Finally, the supplement should present suggestions for conducting stronger studies of similar programs in future evaluation studies. 1. Middle School Transition (Moore) This evaluation is in near-completed form and needs mostly editing and expansion. Because the middle school program is current and continuing, this evaluation study can be useful (mostly for guiding professional development and implementation improvement) for informing district strategies. The achievement results are fairly minimal and uninformative, but at the time of the evaluation (1999-2000), only baseline data existed. Thus, aside from providing additional description of the results (the tables and the narrative are sparse) and a more meaningful interpretation of trends (especially with regard to African American vs. Caucasian students), there is probably little more that needs to be done for this essentially baseline time period. The survey data appear to be reasonably analyzed and reported, but the interpretation and discussion should be extended to provide more meaningful conclusions and recommendations. Suggestions: The third-party evaluator should follow the basic strategy outlined in the introductory section. 3 2. Lyceum Scholars (McNeal) The Lyceum Scholars' High School Program, which was evaluated in 1998-99 and 1999- 2000, is no longer being implemented in LRSD. The latter consideration, coupled with the obvious limitations of the evaluation design with regard to rigor, depth, and meaningfulness of the data, substantially reduce the value of the study and the need for devoting more than minimal resources to it, beyond perhaps a supplemental summary and explanation. Suggestions: The third-party evaluator should follow the basic strategy outlined in the introductory section. 3. Elementary Level Summer School (McNeal) Similar to the Lyceum Scholars' High School Program (#2 above), the Elementary Level Summer School program is no longer being implemented in LRSD. In addition, the evaluation study conducted in the summer of 2001 is limited in its design and methodology. Among the major concerns are the lack of: (a) implementation data to describe the program strategies and the degree to which they were actually used by teachers, (b) an adequate control group or norms to which the achievement scores of summer school students could be compared, and ( c) qualitative data to describe the experiences of students and teachers in the program. Due to \"differential sampling\" the multiple tables provided are neither overly meaningful nor informative regarding the progress of summer school students in general and African American summer school students in particular. Seemingly, there is little useful information to be gained for informing future policies by investing substantive resources in revamping the study. While more suitable control samples might be established using archival data, the absence of implementation assessments would still make the \"treatment\" essentially unknown. Therefore, suggestions similar to those made for the Lyceum Scholars program are also offered here. Suggestions: The third-party evaluator should follow the basic strategy outlined in the introductory section. 4. Vital Link (Ross) The Vital Link program, designed to provide students with on-the-job experiences, was offered to 394 middle school students in the summer of 1999. Because the program was of very limited duration ( only one week) and is not focused on either academic curriculum or learning strategies, it is highly unlikely to have affected students' academic achievement. Although such a program would still potentially serve a useful purpose for fostering student motivation to achieve and complete school, it is no longer being implemented in LRSD. Further, the evaluation study conducted was so limited (a brief post-test only, closed-ended survey) that the policy implications of the results are minimal and even potentially misleading if derived. Therefore, suggestions similar to 4 those made for the Lyceum Scholars Program and the Elementary Level Summer School Program (#'s 2 and 3 above) are again offered here. Suggestions: The third-party evaluator should follow the basic strategy outlined in the introductory section. 5. Onward to Excellence CSRD Program (Ross) The OTE model was implemented at Watson Elementary School for several years, starting in 1999. It has since been discontinued and was never formally evaluated, except for achievement data reports sent by the principal to ADE. Thus, in essence, there is no longer any program in LRSD to evaluate and no evaluation report to revise, expand, or redraft. It would seem wasteful of resources to reexamine historical data from this program, especially since implementation data are lacking. That is, if positive or negative results were found, it would be impossible to determine whether OTE or numerous others factors were the main cause. Suggestions, therefore, are similar to those for #'s 2-4 above. Suggestions: The third-party evaluator should follow the basic strategy outlined in the introductory section. 6. HIPPY (Ross) Because HIPPY is a continuing program, this evaluation can be potentially useful to LRSD by providing initial program results on student achievement and benefits to African American children. A limitation of the study, which unfortunately cannot be remedied retroactively, is the lack of implementation data to describe the fidelity with which HIPPY program components were actually used. The quantitative achievement results must therefore be viewed cautiously, but should still be at least suggestive regarding program influences. Substantive expansion and revision, however, are needed to increase the readability and meaningfulness of the report. For example, there is inadequate description of the program, context, methodology, and analysis design. Tables and findings need to be presented in a more readable (\"user-friendly\") manner. Suggestions: A. Reorganize and expand the introduction and methodology to be in line with district evaluation standards (i.e., more context, more detailed methodology, clearer questions and organization). B. Ed Williams needs to run the revised analysis and write up results by January 31, 2003. A program description needs to be provided. Results need to be disaggregated, if possible, for African American and Caucasian students. Expand the Results sections to provide more informative reporting of outcomes, clearer tabular presentations, etc. C. Expand the Conclusions section to: (a) directly address whether there are implications for the achievement of African American and other disadvantaged groups (there probably are not at this stage), (b) more fully discuss implications and recommendations associated with the findings, and ( c) propose further evaluation research that will validly determine both implementation quality and influences of HIPPY on student achievement. D. The third-party evaluator should follow the basic strategy in expanding this report. 7. Extended Year Education (EYE) Report (Moore) 5 The EYE program is relevant to LRSD's current interests in improving academic achievement of its students. Unfortunately, the present evaluation design does not seem sufficiently sensitive to detect effects that might be attributable to EYE. Specifically, usage of whole-school data compared descriptively to district norms gives only a very surface examination of the schools' progress, with susceptibility to contamination by student mobility, differences in SES, etc. A more precise analysis would match students at the three schools to similar students at comparable schools not using EYE, and then examine progress using a multivariate-type (regression or MANOV A) analysis. It is questionable, however, that such analyses could be completed in the time remaining for the required submission of the final report. Also, the findings would be limited by having only two years of post-program data. Aside from the design limitations, the organization of the report is difficult to follow due to the many tables and brief but not very informative narrative descriptions. The survey data might be interpretable, but also need a much clearer and better organized presentation. Suggestions: The th1rd-party evaluator should follow the basic strategy outlined in the introductory section. 8. Campus Leadership Teams (Ross) This initiative seems highly relevant to current and future goals ofLRSD. However, the \"evaluation data\" collected to date consist of only results from two district-wide surveys that assessed team members' reactions to various activities. No information exists to verify the representativeness of the samples, the validity of the data collection in general, or the implementation of the CLTs at the various schools. The aggregate survey results on the 24 combined items (14 in the team member survey; 10 in the certified/noncertified staff member survey) do not appear overly interesting or meaningful with regard to informing practice. Suggestions: The third-party evaluator should follow the basic strategy outlined in the introductory section. 12/3/02 II II II II II -,II -.. -- VOLUME IV RECEIVED MAR 1 4 2003 OFFICE OF DESEGREGATION MONITORING II : VOLUME II II 1111 II II II -- -- \\ - ~ III RECEIVED MAR 1 4 2003 OFFICE OF DESEGREGATION MDNITDRING I I : I VOLUME I I II I ,I I RECEIVED I MAR 1 4 2003 I OFFICE OF DESEGREGATION MONITORING I I I la I ' - - - - I I VOLUME I I I I 'II ' II II I I I I I RECEIVED MAR 1 4 2003 OFFICE OF DESEGREGATION MONITORING JOHN W. WALKER SHAWN CHILDS Mr. Michael E. Gans, Clerk United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Courthouse 111 S. 10th St., Room 24.329 St. Louis, MO 63102 JOHN W. WALKER, P.A. A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Overnight Delivery March 20,. 2003 OF COUNSEL ROBERT McHENRY, P.A. DONNA J. McHENRY 8210 HENDERSON ROAD LITILE ROCK, ARKANSAS 72210 PHONE: (501) 372-3425 FAX (501) 372-3428 EMAIL: mchenryd@swbell.net RECEIVED '-ktl'JJ r D,?,/, vu tJ MAR ;vZ,)003 OFFICE OF DESEGREGATION MONITORING Re: Little Rock School District, Appellee v. Pulaski County Specia.l School District No.l, Defendants, Mrs. Lorene Joshua, et al., Appellants, Katherine Knight, et al., Intervenors; Appeal Nos. 02-3867, 03-1147 Dear Mr. Gans: Enclosed you will find ten copies of Brief of Mrs. Lorene Joshua, et al. and Addendum and three copies of the Appendix of Mrs. Lorene Joshua, et al. for filing in the above matter. Also enclosed you will find a diskette as required by the rules. JWW:lp cc: All Counsel of Record I I I -I I I I I I I I I I I I IN THE UNITEffSTATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT APPEAL NOS. 02-3867, 03-1147 LITTLE ROCK SCHOOL DISTRICT, APPELLEE V. R~S~'-Y0 MAR 2 o 2003 :l ; {fJ.-P PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL., DEFENDANTS OFFICE Of DESEGREG~llOM MOK\\lORlMG MRS. LORENE JOSHUA, ET AL., APPELLANTS KATHERINE KNIGHT, ET AL., INTERVENORS Appeal from the United States District Court For the Eastern District of Arkansas Honorable William R. Wilson, Jr. BRIEF OF MRS. LORENE JOSHUA, ET AL. Elaine R. Jones President \u0026amp; Director-Counsel Theodore Shaw Norman Chachkin NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 212-965-2200 Rickey H. Hicks 1100 North University Suite 240 Little Rock, Ark. 72207 501-663-9900 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Ark. 72206 501-374-3758 Robert Pressman 22 Locust Avenue Lexington, Mass. 02421 781-862-1955 II II ---- II I I I II II I I I I IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT APPEAL NOS. 02-3867, 03-1147 LITTLE ROCK SCHOOL DISTRICT, APPELLEE V. RECEIVED 1-1i,11-'ld - \u0026amp;. f, -. eri--l PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL., DEFENDANTS MAR 2 O 2003 :Pfl--P OFFICE OF DESEGREGATION MONITORING MRS. LORENE JOSHUA, ET AL., APPELLANTS KATHERINE KNIGHT, ET AL., INTERVENORS Appeal from the United States District Court For the Eastern District of Arkansas Honorable William R. Wilson, Jr. BRIEF OF MRS. LORENE JOSHUA, ET AL. Elaine R. Jones President \u0026amp; Director-Counsel Theodore Shaw Norman Chachkin NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 212-965-2200 Rickey H. Hicks 1100 North University Suite 240 Little Rock, Ark. 72207 501-663-9900 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Ark. 72206 501-374-3758 Robert Pressman 22 Locust Avenue Lexington, Mass. 02421 781-862-1955 I le I I I I I I ,I , I I I I I I I I IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT APPEAL NOS. 02-3867, 03-1147 LITTLE ROCK SCHOOL DISTRICT, APPELLEE v. RECEIVED (-h,.,d- /Je/,.,-t ..-ci PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL., DEFENDANTS MAR 2 O 2003 JI, , z-r \" OFFICE OF DESEGREGATION MONITORING MRS. LORENE JOSHUA, ET AL., APPELLANTS KATHERINE KNIGHT, ET AL., INTERVENORS Appeal from the United States District Court For the Eastern District of Arkansas Honorable William R. Wilson, Jr. APPENDIX OF MRS. LORENE JOSHUA, ET AL. Elaine R. Jones President \u0026amp; Director-Counsel Theodore Shaw Norman Chachkin NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 212-965-2200 Rickey H. Hicks 1100 North University Suite 240 Little Rock, Ark. 72207 501-663-9900 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Ark. 72206 501-374-3758 Robert Pressman 22 Locust Avenue Lexington, Mass. 02421 781-862-1955 (\u0026lt;- I I I I I I I I r I I I 'I IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT APPEAL NOS. 02-3867, 03-1147 LITTLE ROCK SCHOOL DISTRICT, APPELLEE v. RECEIVED /b1Jc tJ./, ,eo,/ PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL., DEFENDANTS . MAR 2 0 2003 J{ : f2f) OFFICE OF DESEGREGATION MONITORING MRS. LORENE JOSHUA, ET AL., APPELLANTS KATHERINE KNIGHT, ET AL., INTERVENORS Appeal from the United States District Court For the Eastern District of Arkansas Honorable William R. Wilson, Jr. ADDENDUM OF MRS. LORENE JOSHUA, ET AL. Elaine R. Jones President \u0026amp; Director-Counsel Theodore Shaw Norman Chachkin NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY 10013-2897 212-965-2200 Rickey H. Hicks 1100 North University Suite 240 Little Rock, Ark. 72207 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Ark. 72206 501-374-3758 Robert Pressman 22 Locust Avenue Lexington, Mass. 02421 781-862-1955 LITTLE ROCK SCHOOL DISTRJCT V. CASE NO. 4:82CV00866 WRW/ PULASKI COUNTY SPECIAL SCHOOL DISTRJCTNO. 1, ET AL. RECEIVED DEFENDANTS INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL. KATHERJNE KNIGHT, ET AL. MAR 21 2003 OFFICE OF DESEGREGATION MONITORING JOSHUA INTERVENORS' MOTION FOR EXTENSION OF TIME The Joshua Intervenors, by and through their counsel, John W. Walker, P.A., respectfully move the Court for an extension of time in which to respond to Little Rock School District's Notice of Filing Program Evaluations Requested by Paragraph C of the Court's Compliance Remedy, and for cause states: 1. On March 14, 2003, LRSD served a Notice of Filing Program Evaluations Required by Paragraph C of the Court's Compliance Remedy on the Joshua Intervenors. 2. Due to undersigned counsel 's heavy trial schedule, including an extensive jury trial in federal district court over the past two weeks and the beginning of another jury trial on Monday, March 17, 2003 , in the matter of State v. Tyrone Gamble, Craighead County Circuit Court: CR-2000-0078 before the Honorable John Fogleman. It has become apparent that this matter will continue well into next week which precludes counsel from responding to the submission in a timely manner. .., .) . Therefore, undersigned counsel requests an extension of time to respond to LRSD's submission up to and including April 13, 2003. 4. There is no prejudice to any party by the granting of the delay. WHEREFORE, Joshua Intervenors respectfully request an extension of time of twenty _(20) days, up to and including April 13, 2003 , in which to respond to LRSD's Notice of Filing Program Evaluations Required by Paragraph C of the Court's Compliance Remedy. 12~J,~ 6 Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted, J . J . , .A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 2 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing hm~s~nt by fax and U.S. Mail, postage prepaid to all counsel of records, on this;;t' day of 00/4... , 2003: J~er ,.., .) IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LORENE JOSIIDA, et al. KATHERINE KNIGHT, et al. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS On March 14, 2003, LRSD_filed its Notice of Filing Program Evaluations as required by Paragraph C of the Compliance Remedy in my September 13, 2002 Order. On March 20, 2003, Joshua Inte.rvenors filed a Motion for Extension of Time in which to r\u0026lt;:spond. Counsel for Joshua cites a heavy trial schedule which would preclude him :from responding in a timely mwmer. No parties object to the extension. Therefore, Joshua's Motion (doc. no. 3747) is GRANTED, and Joshua Intervenors have until 12:00 p.m. on Monday, April 14, 2003, in which to respond to LRSD's Notice of Filing Program Evaluations. ~ IT IS SO ORDERED this~ day of March, 2003. ~~nJDGE FILED EAS U.S. DISTRICT COURT TERN DISTRICT ARKANSAS MAR 2 5 2003 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS ~~:MES W. McCORMACK, CLERK WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED MAR 2 7 2003 OFFICE OF DESEGREGATION MONITORING ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS PCSSD filed its motion for approval of a middle school site in Maumelle on October 22, 2002. Joshua raised certain questions concerning the proposed new school in its response - filed December 6, 2003, and the Court wrote a letter on January 28, 2003, to all of the parties making certain inquiries, particularly concerning recruitment to the new school for the proposed 200 seats that would be reserved for transferring M-to-M students. The parties have now responded, via pleadings, to the Court's letter. By and large, the following enumerated points are drawn from the supplemental responses of the parties, particularly those of PCSSD. On March 19, 2003, the Court circulated these enumerated points as a proposed order. All parties were given until March 24, 2003, at 12:00p.m. in which to file objections to the contents of the proposed order. As of today, March 25, 2003, no objections have been received. Therefore, I conclude that none of the parties have any objections to the proposed order. PCSSD's motion is hereby granted and the parties are directed to do the following: 1. The M-to-M stipulation, adopted as an order of this Court, presumes that transferring children entering the receiving district at one organizational level will continue DEP CLERK - their education at the next available organizational level and will be encouraged to do so. Hence, pursuant to the M-to-M stipulation, it is presumed that LRSD transferring students who have elected to attend Crystal Hill, Pine Forrest and Oak Grove elementary schools will continue their education in PCSSD at the next organizational level. The PCSSD shall look first to the number of transferring LRSD students currently attending the three elementary schools in PCSSD which would feed the Maumelle middle school. Further, the Court is informed that Sylvan Hills Middle School no longer has the capacity to accommodate all 6th grade M-to-M students who attended Clinton Interdistrict School through the 5th grade. Those students should be informed of their opportunity to attend the new middle school in Maumelle. Also, the seats proposed for reservation at the new Maumelle school shall not be limited to Little Rock students but should include eligible students from North Little Rock as well. 2. The Court is informed that Little Rock currently takes the laboring oar in educating students in the LRSD about the opportunities at Crystal Hill. Most of the student body from Little Rock at Crystal Hill represents those students who were unable to gain entry to Gibbs , Booker, Williams or Rockefeller and who elected to come to Crystal Hill. Since the PCSSD hosts those students for several years, including some who currently enter as pre-K students and leave currently as sixth grade students, the PCSSD has a daily audience of 400 Little Rock M-to-M students and frequent contact with their parents and guardians sufficient to sustain \"on-going\" recruitment for the middle school from the time these children enter Crystal Hill. Thus, while the PCSSD will continue to rely upon the LRSD to initially - encourage children to attend Crystal Hill, the PCSSD will assume principal responsibility for 2 convincing those children to continue, consistent with the M-to-M stipulation, their education at the Maumelle middle school. 3. The Court is informed that efforts will be made to recruit M-to-M students attending Crystal Hill, Oak Grove, Pine Forest, Clinton elementary schools, and Oak Grove Junior High School (7th grade). Parents of 4th , 5th , and 6th grade LRSD M-to-M students attending Crystal Hill, Oak Grove, and Pine Forest, 4th and 5th grade Clinton M-to-M students, and Th grade M-to-M students attending Oak Grove Junior High School will be informed of the District's intent to build a middle school at the proposed Maumelle site. The District's website will provide information to parents from the three Districts about the plans and progress of the proposed middle school. Parents and teachers will be surveyed to identify needs, concerns, and expectations . Data from the parent and teacher surveys will allow input from the District's internal and external publics into the planning and implementation process at the Maumelle middle school. Parents of 4th and sch grade African American students in LRSD and NLRSD will also receive information about the new middle school in the Maumelle area. The Magnet Review Committee will also assist with recruitment. 4. The LRSD personnel primarily responsible for recruitment and assignment to stipulation magnet schools will continue to be those persons principally responsible for educating LRSD children regarding Crystal Hill. Once the children reach Crystal Hill (as well as Pine Forrest and Oak Grove elementary schools), the teachers and counselors who work in those buildings will have principal responsibility for discussing the middle school with children and their parents and guardians. The PCSSD Department of Equity and Pupil Services and the Student Assignment Office will work with LRSD, NLRSD, and Magnet 3 - Review Committee personnel to recruit African American students for the proposed middle school. 5. LRSD will give PCSSD recruiters full access to students and parents through the LRSD schools. 6. The LRSD will be responsible for making sure that transportation for transferring students is adequate. 7. A parent/teacher committee drawn from the existing Maumelle middle school facility committee has been formed to evaluate and recommend unique and attractive programs to attract M-to-M students. A representative from Joshua will be invited to participate. This Committee will evaluate and recommend unique and attractive programs with, as a starting point, determining whether the current program at Crystal Hill Elementary School should be extended to the middle school. This program emphasizes communications with an emphasis upon technology and basic skills. 8. The PCSSD will follow the middle school plan previously developed and presented to the Court with appropriate refinements and additions. The final middle school plan was approved by this Court on June 4, 2001. 9. Given the foregoing, the PCSSD's proposal to acquire a site at the intersection of Murphy and Carnahan Drive for a new middle school is hereby approved. IT IS SO ORDERED this 25th day of March, 2003. DOCKET SHEET IN COMPLIANCE ' ~ll~~~~L,,f1 ~8 AN~RCF --='~0/~BY ~D~ United States District Judge Wm. R. Wilson, Jr. 4 I ie i I i -i -I,_ I I I I I I ~ I E 2002-03 ENROLLMENT AND RACIAL BALANCE IN THE PULASKI COUNTY SPECIAL SCHOOL DISTRICT Ann S. Marshall Federal Monitor March 26, 2003 Office of Desegregation Monitoring United States District Court Little Rock, Arkansas Polly Ramer Office Manager UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED MAR 2 7 2003 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of AD E's Project Management Tool for March 2003 . Respectfully Submitted, MIKE BEEBE Attorney General ~~ COLETTE D. H0NRABLE#96016 Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 682-8123 Attorney for Arkansas Department of Education CERTIFICATE OF SERVICE I, Colette D. Honorable, certify that on March 25, 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P .A 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Plaza West Building 415 N. McKinley, Suite 465 Little Rock, AR 72205 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 ~ ColetteD.Honora 2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED MAR 2 7 2003 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of March 31 , 2003 Basedonthe .informatitinavafiab(e a.i F~bri}arY:-2a, :20O3,:the Ap ~-caicuiated 'the EqUaiizatiori Funding for:FX.02103):JiuB1ed fo per,adic.aei}ustments: 8. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["71 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eDistrict Court, supplement to Pulaski County Special School District (PCSSD) motion of October 22, 2002, for approval of middle school site; District Court, plaintiff's response to the Court's letter regarding Pulaski County Special School District's (PCSSD's) motion for approval of middle school site; District Court, North Little Rock School District (NLRSD) statement in support of middle school in Maumelle; District Court, Pulaski County Special School District's (PCSSD's) motion re: portable building at Sylvan Hills Middle School; District Court, Joshua intervenors' response to Pulaski County Special School District's (PCSSD's) motion regarding portable building at Sylvan Hills Middle School; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. EDWARD L . WRIGHT (1903- 1977) ROBERT S. LINDSEY (1913-1991) WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F . COX . JR . TROY A . PRICE PATRICIA SI EVERS HARRIS ISAAC A . SCOTT, JR . KATHRYN A . PRYOR JOHN G. LILE 200 WEST CAPITOL AVENUE SU ITE 2300 GORDON S. RATHER , JR . TERRY L . MATHEWS ROGER A . GLASGOW C. DOUGLAS BUFORD. JR . PATRICK J. GOSS LITTLE ROCK, ARKANSAS 72201 - 3699 ALSTON JENNINGS . JR . JOHN R. TISDALE KATHLYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY Ill LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLEST . COLEMAN JAMES J. GLOVER EDWIN L . LOWTHER , JR. CHARLESL . SCHLUMBERGER WALTER E. MAY GREGORY T . JONES H. KEITH MORRISON (501) 371-0808 FAX (501) 376-9442 www . wlj . com OF COUNSEL ALSTON JENNINGS RONALD A. MAY BRUCE R. LINDSEY JAMES R. VAN DOVER BETTINA E. BROWNSTEIN WALTER McSPADDEN ROb6R D. ROWE Writ er ' s Direct Dial No . 501 -212 - 1273 mjoncs@wlj . com JOHN D . DAVIS JUDY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse 600 West Capitol Avenue, Suite 360 Little Rock, Arkansas 72201 February 4, 2003 J, MARK DAVIS CLAIRE SHOWS HAN COCK KEVIN W. KENNEDY JERRY J. SALLIN GS WI LLIAM STUART JACK SON MICHAEL 0 . BARNES STEPHEN R. LAN CAST ER JUDY ROB INSON WILBER KYLER . WILSON C. TAO BOHANNON KRISTI M . MOODY J. CHARLES DOUGHERTY M . SEAN HATCH J. ANDREW VINES JUSTIN T . ALL EN CIIRI STIN E J. DA l.i (jllEK T , rt1 I\u0026gt; MI CHELLE M KA F.MMER LIN(.; ERIKA ROS S SCOTT ANDREW I RB Y MICHELLE HARGI S DILLARD PATRICK 0 . WILSON lii.:cmsr:d co pl7f,tic:t: ht:10~ tht: Unirt:d Stares Patt:nt and Trad~marJ.: O!1h-r: RECEIVED FEB - 5 2003 OFFICE OF DESEGREGATION MONITORING Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No. : 4:82CV00866WRW Dear Judge Wilson: In response to the Court's letter of January 28 , 2003 , I enclose a courtesy copy of the supplement to PCSSD motion of October 22, 2002 for approval of middle school site. The original has been filed and the parties served. Thank you for your consideration in this matter. MSJ:ao Encl. cc/w/encl.: Honorable J. Thomas Ray All Counsel of Record Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ~ IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW ):\u0026gt;ULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. SUPPLEMENT TO PCSSD MOTION OF OCTOBER 22, 2002 FOR APPROVAL OF MIDDLE SCHOOL SITE The PCS SD for: its supplement to motion, states: RECEIVED FEB - 5 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Court has posed certain questions to the parties in this case regarding issues associated with the proposed new middle school. The numbered paragraphs set forth below correspond to the Court's letter of January 28, 2003. At the outset, it is instructive to note that what the District's desegregation plan states with respect to a middle school in Maumelle is simply that: An elementary school, located around 145th Street, and a middle school or junior high school in the Crystal Hill\\Maumelle area will be built. Exhibit A reflects updated student population data gleaned both from census data and enrollment record. 395608-vl 1. As a starting point, it should be recalled that the M-to-M stipulation, adopted as an order of this Court, presumes that transferring children entering the receiving district at one organizational level will continue their education at the next available organizational level and will be encouraged to do so. Hence, pursuant to the M-to-M stipulation, it is presumed that LRSD transferring students who have elected to attend Crystal Hill, Pine Forrest and Oak Grove elementary schools will continue their education in the receiving district at the next organizational level, particularly when interdistrict schools are available to them. Accordingly, as explained in its October motion, the PCSSD looks first to the number of transferring LRSD students currently attending the three elementary schools in PCSSD which would feed the Maumelle middle school. 79 of those students currently attend Oak Grove Junior High, a rather significant number given that the new middle school was - conceived to replace the overcrowded Oak Grove facility which offers no special inducements for interdistrict transfer. It should also be noted that Sylvan Hills Middle School no longer has the capacity to accommodate all 6th grade M-to-M students who attended Clinton lnterdistrict School through the 5th grade. The seats proposed for reservation at the new Maumelle school are not limited to Little Rock students but include eligible students from North Little Rock as well. For instance, of the 79 students referred to in Paragraph 1, 26 of those students are from North Little Rock. Further, the principal junior high magnet school in Little Rock, Mann, is both being rebuilt and historically has never had sufficient room to house all Little Rock black students seeking education at a magnet junior high or middle school. 395608-vl 2 2. Both. Little Rock currently takes the laboring oar in educating students in the LRSD about the opportunities at Crystal Hill. Most of the student body from Little Rock at Crystal Hill represents those students who were unable to gain entry to Gibbs, Booker, Williams or Rockefeller and who elected to come to Crystal Hill. Obviously, since the PCSSD hosts those students for several years, including some who currently enter as pre-K students and leave currently as sixth grade students, the PCSSD has a daily audience of 400 Little Rock M-to-M students and frequent contact with their parents and guardians sufficient to sustain \"on-going\" recruitment for the middle school from the time these children enter Crystal Hill. Thus, while the PCSSD will continue to rely upon the LRSD to initially encourage children to attend Crystal Hill, the PCSSD will assume principal responsibility for convincing those children to continue, consistent with the M-to-M stipulation, their education at the Maumelle - middle school. 3. Please see response to question no. 2. Also, efforts will be made to recruit M-to- M students attending Crystal Hill, Oak Grove, Pine Forest, Clinton elementary schools, and Oak Grove Junior High School (7m grade). Parents of 4m, sm, and 6m grade LRSD M-to-M students attending Crystal Hill, Oak Grove, and Pine Forest, 4m and 5m grade Clinton M-to-M students, and 7m grade M-to-M students attending Oak Grove Junior High School will be informed of the District's intent to build a middle school at the proposed Maumelle site. The District's website will provide information to parents from the three Districts about the plans and progress of the proposed middle school. Parents and teachers will be surveyed to identify needs, concerns, and expectations. Data from the parent and teacher surveys will allow input from the District's internal and external publics into the planning and implementation process 395608-vl 3 at the proposed middle school. Parents of 4 m and 5m grade African American students in LRSD and NLRSD will also receive information about the proposed middle school in the Maumelle area. The Magnet Review Committee will also assist with recruitment. 4. The LRSD personnel primarily responsible for recruitment and assignment to stipulation magnet schools will continue to be those persons principally responsible for educating LRSD children regarding Crystal Hill. Once the children reach Crystal Hill (as well as Pine Forrest and Oak Grove elementaries), the teachers and counselors who work in those buildings will have principal responsibility for discussing the middle school with children and their parents and guardians. The Department of Equity and Pupil Services and the Student Assignment Office will work with LRSD, NLRSD, and Magnet Review Committee personnel to recruit African American students for the proposed middle school. 5. Yes. 6. Yes. 7. A parent/teacher committee drawn from the existing Maumelle middle school facility committee has been formed to evaluate and recommend unique and attractive programs to attract M-to-M students. A representative from Joshua will be invited to participate. This Committee will be asked to evaluate and recommend unique and attractive programs with, as a starting point, evaluating whether the current program at Crystal Hill Elementary School should be extended to the middle school. This program emphasizes communications with an emphasis upon technology and basic skills. 8. The PCSSD will essentially follow the middle school plan previously developed and presented to Judge Wright with appropriate refinements and additions. The final middle 395608-vl 4 school plan was approved by this Court on June 4, 2001. It had previously approved the conversion of the Jacksonville Junior High Schools to middle schools. By 2003-2004, the PCSSD will be in its 5th year of operating middle schools and Maumelle would be the last to be implemented. 395608-vl Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 ue~ Jones III (76060) A~neys for Pulaski Cou~ S ool Districy - ------- 5 pecial CERTIFICATE OF SERVICE On February 4, 2003 , a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 395608-vl 6 Mr. Dennis R. Hansen Arkansas Attorney General 's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West -Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 CENSUS DATA FOR PULASKI COUNTY SPECIAL SCHOOL DISTRICT PROPOSED CRYSTAL HILL/MAUMELLE MIDDLE SCHOOL 2004-2005 The U.S. Census Bureau reported **2,246 children between the ages of 4 to 18 years old residing in the Maumelle Urban Cluster area for the year 2000. Data for school aged children ** 11 to 15 was reported at 749 for the same year. Age groupings **4 to 15 were listed at 1,880. Refer to Table 1 for individual age numbers. Table 1: Single Age Numbers for Maumelle Urban Cluster 2000 Census 4 156 5 142 6 151 7 161 8 169 9 175 10 177 11 141 12 166 13 139 14 150 15 153 16 132 17 133 18 101 EXHIBIT A Based on the 2002-2003 first quarter PCSSD enrollment figures ***1,643 elem~ntary students - attend PCSSD schools in the Crystal Hill/Maumelle area. This total is comprised of ***581 (34%) elementary age black students and ***1062 (66%) white students. The projected rate of enrollment growth for the proposed Crystal Hill/Maumelle area middle school for 2004-2005 is estimated to be ***662 students (Based on 2000 U.S. Census of *4.6% growth projections). Tables 2, 3 and 4 depict middle school growth projections . . Table 2: 6th Grade Crystal Hill/Maumelle Area Middle School Enrollment Projections School Year # Black Students Percent # White Students Percent Total 2002-2003 66 34 126 66 192 2003-2004 85 34 162 66 247 2004-2005 85 44 109 56 194 Table 3: 7th Grade Crystal Hill/Maumelle Area Middle School Enrollment Projections School Year # Black Students Percent # White Students Percent Total 2002-2003 57 41 81 59 138 2003-2004 69 34 132 66 201 2004-2005 89 34 169 34 258 Table 4: 8th Grade Crystal Hill/Maumelle Area Middle School Enrollment Projections School Year # Black Students Percent # White Students 2002-2003 38 31 2003-2004 60 49 2004-2005 72 34 Sources: *Census State Data Center UALR Institute for Economic Advancement **U.S. Census Bureau Profile of Demographic Characteristics: 2000 Geographic Area: Maumelle, AR Urban Cluster ***First Quarter 2002-2003 Student Enrollment Pulaski County Special School District 83 85 138 Percent Total 69 121 59 145 69 210 IN THE UN1TED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECE FEB - 5 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS PLAINTIFF'S RESPONSE TO THE COURT'S LETTER REGARDING PCSSD'S MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE Plaintiff Little Rock School District (\"LRSD\") hereby responds in tum to each numbered question in the Court's letter of January 28, 2003 regarding the PCSSD's Motion for Approval of Middle School Site: Question: Is interest in M-to-M transfers within LRSD's African-American communities sufficient to justify reserving a certain number of seats for M-to-M students at the Maumelle school? How do LRSD and PCS SD propose to ascertain that level of interest? 1. Yes. The LRSD agrees with PCS SD that it is reasonable to judge the prospective interest of its students in transferring to a new Maumelle Middle School based on the number of LRSD students currently attending the elementary schools that will feed the new Maumelle Middle School, the number of those students that traditionally continue in the PCS SD system following elementary school and attend Oak Grove Junior High and the number ofLRSD students who choose for the first time to transfer to the PCSSD for junior high/middle school. Question: Will PCSSD, LRSD, or both school districts assume responsibility for student recruitment? 2. Both. The LRSD has traditionally initiated most M-to-M transfers of LRSD students to the PCSSD. Once they are in the PCSSD system, the PCSSD has assumed responsibility for keeping them as they move to the next organizational level. The LRSD does - not intend to in any way to guarantee to fill any number of seats reserved for M-to-M transfers by the PCSSD. Question: What are the details of and timeline for the recruitment plan? 3. LRSD students are provided information annually about M-to-M transfer opportunities. The LRSD's two parent recruiters provide parents with their M-to-M options when LRSD parents are seeking information at the LRSD's Student Registration Office. They may also take LRSD parents on tours of PCS SD schools eligible to accept an M-to-M transfer. Question: What persons and resources will be assigned to M-to-M recruitment? 4. See Response to Question No. 3. The LRSD expends these resources promoting M-to-M transfers by LRSD students even though the \"Pooling Agreement\" (Settlement Agreement, Section II, paragraph 0) as interpreted by the District Court creates a financial disincentive for the LRSD to undertake these activities. Question: Will LRSD give PCS SD recruiters full access to students and parents through - LRSD schools? 5. Yes. Question: Will transportation provided by LRSD be adequate to facilitate the transfer of students? 6. Yes, for as long as it is paid for by the State of Arkansas. Question: What unique, attractive programs will PCSSD put in place at the Maumelle school to attract M-to-M students from LRSD? 7. The LRSD defers to the PCSSD's response to this question. Question: What steps will PCSSD take to ensure that the Maumelle school reflects the \"middle school concept\" in terms of facility design, academic programs, and staffing? 8. The LRSD defers to the PCSSD's response to this question. 2 Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 6 -----.. lf2e__ _:::\u0026gt; / // BY: ' . ___ .. . ---~ / ChristopherHeller CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on February 4, 2003: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor I Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Collette D. Honorable Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, AR 72201 ------- ~ ~ / / ./ -\u0026gt; '/ __. ,. t Af4i --. -~ Christophe~ 3 r ~' 'f/.1 rv- I\"' ! 1 , ,::-.) A31(-,f;_'. ht.j !J, '' I-, ~..:. 'J , .. ; r A, .\".i''r Fr:: u \u0026lt;Iv-JV\u0026lt;/.\\ -~-P,. 0 \"' s .1 .. IN THE UNITED STATES DISTRICT COU[ 1M.s vv \"' i00J EASTERN DISTRICT OF ARKANSAS r.___ 1 \"-CO/ WESTERN DIVISION - - - ---~ _. ~ r::.i.:??:,: LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DEFENDANTS DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL RE\u0026amp;itW=ED .:,.:-:-:.~, . FEB - 5 2003 OFFICE OF DESEGREGATION MONITORING INTERVENORS INTERVENORS NLRSD STATEMENT IN SUPPORT OF MIDDLE SCHOOL IN MAUMELLE The North Little Rock School District has a significant number of African-American students attending school in the Pulaski County School District, particularly at the Oak Grove Junior and Senior High Schools. It is our understanding that, upon completion of a middle school in Maumelle, the Oak Grove facility will be reconfigured as a grade 9 - 12 high school and that the middle school will replace the remaining grades currently in the Oak Grove Junior High School. The creation of a middle school in Maumelle will extend the educational opportunities and choices presently available to the North Little Rock School District African-American children through majority-to-minority transfers. Past experience has shown that a new facility is a substantial factor in attracting students. We would expect this to hold true in this instance as well. Therefore, the North Little Rock School District believes the construction of a new middle school in Maumelle would enhance the attractiveness of the PCSSD District attractive to North Little Rock School District African American students. By: -, -ste en W. Jones 3400 TCBY Towe\"'- 425 West Capitol Avenue Little Rock, Arkansas 72201 (501) 375-1122 JACK, LYON \u0026amp; JONES, P.A. CERTIFICATE OF SERVICE I, Stephen W. Jones, hereby certify that a copy of the foregoing pleading was served on all counsel of record as listed below this 4th day of February, 2003 Christopher J. Heller, Esq. Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, AR 72201 Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg . 200 West Capitol Little Rock, AR 72201 2 - Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 I \\North Linlc Rock School Oistric1 0001\\0cscgrcgation Mauers 0002\\PLEADING\\NLRSD S1a~m:111 or Suppon :-..11ddlc School r.. taunidlc 02 03 03 wpd C, ; ~ ILCt.,. ~ -\u0026lt; ...,.,._ /J.A..._ IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PCSSD'S MOTION RE PORTABLE BUILDING AT SYLVAN HILLS MIDDLE SCHOOL The PCS SD for its motion, states: RECEIVED FEB 1 2 2003 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. The band room at Sylvan Hills Middle School is periodically plagued with standing water. The PCSSD believes that this problem can be remedied during the summer when school is out. 2. In the meantime, the PCSSD desires permission to lease a portable building for use as a temporary band room until the end of the current school year. 3. The PCS SD does not believe there is actually anything within the four comers of Plan 2000 requiring that this matter be presented to the Court. However, under the predecessor plan, the PCSSD pledged to eliminate portable buildings and to replace them with permanent construction. It did so. 4. Accordingly, lest any person question the current motives of the PCSSD, it seeks an order of this Court granting it permission to lease a portable building for use as a 397582-v1 band room until the end of this school year. Such a lease will not constitute an expansion of the capacity of Sylvan Hills Middle School. 5. Personnel from the PCS SD have made contact with representatives of the other parties in this case and undersigned counsel is therefore authorized to state that no party has voiced an objection to the relief sought in this motion. WHEREFORE, PCSSD prays for an order granting it permission to lease a portable building at Sylvan Hills Middle School for use as a temporary band room until the conclusion of the current school year and for all proper relief. 397582-vl Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2300 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 Special 2 CERTIFICATE OF SERVICE On February 12, 2003, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 397582-vl Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 M.Samu~~( 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 82:CV00866 WRW PULASKI COUNTY SPECIAL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. JOSHUA INTERVENORS' RESPONSE TO PCSSD'S MOTION REGARDING PORTABLE BUILDING AT SYLVAN HILLS MIDDLE SCHOOL RECEIVED FEB 2 5 2003 DESEGRE GjjfbiE OF MONITORING PLAINTIFF DEFENDANTS INTER VENO RS INTER VENO RS Joshua resolved this matter with school district officials on or about February 10, 2003 . Therefore, the Joshua Intervenors do not oppose the Motion of the PCSSD. Respectfully submitted, John W. Walker, P,A. 1723 Broadway Little Rock, AR 72206 50 58 50 CERTIFI I do hereby state that a copy oft record on this24th day of February, 2003 . IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION -.1 .::..:,_' -::- - - .. -~ ~S.:--- LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIF1~-=-=--~-~-------.:::::-~:'\" V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions C of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. - IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of February 28, 2003 . ~~-t:~;~~itn~ JG~~~;~~-~-;::~~~t~bjbrti1,~t,i;~gr~ri!r J8;fig ~~fcui~tedu,e B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. RECEIVED MAR - 3 20D3 OFFICE OF DESEGREGATION MONITOR/NG 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 NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of AD E's Project Management - Tool for February 2003. RECEIVED MAR - 3 2003 OFFICE OF DESEGREGATION MONITORING Respectfully Submitted, MIKE BEEBE Attorney General ~ COLETTE D. HONORABLE #96016 Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 682-8123 Attorney for Arkansas Department of Education CERTIFICATE OF SERVICE I, Colette D. Honorable, certify that on February 27, 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Attorney at Law P.O. Box 17388 Little Rock, AR 72222-7388 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 ~z Colette D. Honorable 2 This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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District Court (Arkansas: Eastern District)"],"dc_date":["2003-01"],"dcterms_description":null,"dc_format":["application/pdf"],"dcterms_identifier":null,"dcterms_language":["eng"],"dcterms_publisher":["Little Rock, Ark. : Butler Center for Arkansas Studies. Central Arkansas Library System"],"dc_relation":null,"dc_right":["http://rightsstatements.org/vocab/InC-EDU/1.0/"],"dcterms_is_part_of":["Office of Desegregation Monitoring records (BC.MSS.08.37)","History of Segregation and Integration of Arkansas's Educational System"],"dcterms_subject":["Little Rock (Ark.)--History--21st Century","Education--Arkansas","Arkansas. Department of Education","Project management","School districts","Little Rock School District","Pulaski County Special School District","Education--Finance","Office of Desegregation Monitoring (Little Rock, Ark.)","Elementary schools","Harris Elementary School (North Little Rock, Ark.)","African Americans--Education","School integration"],"dcterms_title":["Notice of appeal and notice of filing Arkansas Department of Education (ADE) project management tool and court order regarding Office of Desegregation Monitoring budget from 2002-2003."],"dcterms_type":["Text"],"dcterms_provenance":["Butler Center for Arkansas Studies"],"edm_is_shown_by":null,"edm_is_shown_at":["http://arstudies.contentdm.oclc.org/cdm/ref/collection/bcmss0837/id/1744"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":["Available for use in research, teaching, and private study. Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["100 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eDistrict Court, notice of filing, Arkansas Department of Education (ADE) project management tool; District Court, order; District Court, notice of appeal; District Court, two orders; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED JAN - 3 200!' OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of ADE's Project Management Tool for December 2002. Respectfully Submitted, MARK PRYOR Attorney General DENNIS R. HANSEN, # 97225 Chief Deputy Attorney General 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 682-2081 Attorney for Arkansas Department of Education CERTIFICATE OF SERVICE I, Dennis R. Hansen, certify that on December 30, 2002, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr.M. SamuelJones,ill Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Attorney at Law P.O. Box 17388 Little Rock, AR 72222-7388 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Dennis R. Hansen IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KA THERINE W. KNIGHT, ET AL INTERVENORS AD~SPROJECTMANAGEMENTTOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. - IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of December 31 , 2002 i1~i~:~~11~~~~tiil{f~1l~il~~;~~:~r~i~,r.~'1g:~~~l.iV~~:f jif~~~;~icW~tg~ ' B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. RECEIVED JAN -8 2003 OFACEOF DESEGREGATION MONITORING ORDER ru .... c:u U.S. DISTRICT COURT EASTERN DISTRICT ARKNJSAS JAN - 7 20G3 ~~:MES \\N. McCORMAC:(, CLER:-': PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS Before the Court is the proposed 2002-2003 budget for the Office of Desegregation Monitoring. Though both LRSD and the Joshua Intervenors filed \"Responses\" which aired concerns about the budget, no specific objections were made by either party. 'I hereby approve the proposed budget as submitted. I am mindful that there may be a motion to adjust OD M's final budget for 2002-2003 following determination of the appeal of my order granting LRSD partial unitary status. ODM's goal should be to submit a proposed budget for 2003-2004 by May 1, 2003, so that I may approve the budget before the 2003-2004 budget cycle begins. If my Order on unitary status is affirmed on appeal, ODM should work with all parties, prior to submission of the proposed 2003 -2004 budget, to develop a more equitable means of apportioning LRSD's share of the cost ofODM. ft; IT IS SO ORDERED this day of January, 2003. \"i 7 2 FILED EAsTMR\\ g,srn,cT COURT ISTR/CT ARKANSAS JAN 0 7 2003 IN THE UNITED STATES DISTRICT coUR; EASTERN DISTRICT OF ARKANSAS B~:MES W. McCORMACK, CLERK WESTERN DIVISION DEP CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED DEFENDANTS JAN - 9 2003 INTER VENO RS OFFICE OF INTER VENO RS DESEGREGATION MONITORING NOTICE OF APPEAL The Joshua Intervenors give notice of appeal pursuant to Rule 3(a) of the Rules of Appellate Procedure with respect to Honorable William R. Wilson Jr.' s order and the corresponding judgment, both entered herein on December 20, 2002. t.~ll-~ Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Respectfully submitted, /Jh.101~ John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501-374-4187 Rickey H. Hicks Attorney At Law 1100 North University, Suite 240 Little Rock, AR 72207 501-663-9900 CF CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Notice of Appeal has been forwarded to all counsel of record via United States mail, postage prepaid on this 7th day ofJ anuary, 2002. JliJiJu.~ FILED IN THE UNITED ST A TES DISTRJCT COURT EASTERN DISTRJCT OF ARKANSAS WESTERN DIVISION U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS JAN 2 3 2003 LITTLE ROCK SCHOOL DISTRJCT JAMES W. McCORMACK, CLERK By: PLAINTIFF DEP CLERK VS. 4:82CV00866 WRW / JTR PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. 1, et al. .MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. RECEIVED JAN 2 8 2003 OFACE OF DESEGREGATION MONITORING ORDER DEFENDANTS INTER VEN ORS INTER VEN ORS Joshua's request for an extension of the deadline for filing a supplemental pleading on the issues raised in their Response to Motion Regarding Site Selection at Maumelle is granted, and Joshua has until noon Monday, January 27, 2003, within which to file this response (or the potential agreed order referenced in Joshua's letter of this date). (\\c\\ IT IS SO ORDERED this ]Zday of January, 2003. - UNITED STATES DISTRJCT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE o~;J..J~Sj,\" Am~ ~:~p 728 RECEIVED :~- FILED U S DISTRICT COURT JAN 3 0 2003 ': a: EASTERN DISTRICT ARKANSAS OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES'OISTRICT COURT JAN 18 2003 EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION JAMES W. McCORMACK, CLERK ,By: DEP CLERK '-, LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Court is hereby informed that counsel for Pulaski County Special School District (PCSSD) and the Joshua lntervenors submit the following agreement with - respect to the Harris Redesign and Sherwood Rezoning: 1. The parties agree that the redesign of Harris Elementary School is consistent with the School District's plan and commitment not to close schools that are located in predominately African American areas. 2. The PCSSD Enrollment Count for October 1, 2001-2002 indicates a decline of 484 students. According to the First Quarter 2002-2003 Enrollment Report student enrollment declined from the first quarter of 2002-2003 to the second quarter of 2002-2003 by 209 students. Harris is a predominately African American School with a declining enrollment. Its racial percentage for the 2002-2003 school year is approximately 69% African American and 31% Caucasian. The proposed reassignment of African American students will increase the African American student enrollment from 394491 -v1 1 69% to 78%. African American students fron, Brushy Island will not be reassigned to Harris but will continue to attend Cato Elementary. Cato Elementary student enrollment will remain 75% Caucasian (white) and 25% African American (black). 3. The parties agree that working toward a racially balanced student body is an appropriate goal for Harris Elementary School, and is consistent with Plan 2000. 4. These parties agree that PCSSO shall vigorously recruit minority students (white) from North of the river for placement in the Harris Elementary School. The Director of Equity and Multicultural Education who will report to the Assistant Superintendent of Equity and Pupil Services shall direct this intensification of effort. Timely reports regarding monitoring activities will be sent to Joshua lntervenors and the Office of Desegregation Monitoring. 5. The parties agree to the establishment for the Harris Elementary School of a standing \"recruitment committee\". The committee will provide documentation of their efforts to the Director of Equity and Multicultural Education. One of the recruitment activities efforts will be to partner Harris with Sherwood schools for exchange activities and to provide desegregative experiences for students attending Harris Elementary. 6. PCSSD will vigorously recruit white students North of the river to attend Harris Elementary School. Recruitment will include but not be limited to the following: transportation will be provided, approximately 50 percent of the seats for the four year old, and before and after school programs will be allocated for white students electing to attend Harris. The recruiters explain the educational advantages of attending Harris to parents who are being recruited. 394491-v1 2 7. The Director of Equity and Multicultural Education will closely work with Real Estate Agents, government and community organizations, PTA and PTO's to recruit and provide information about the Harris Specialty Program. 8. PCSSD will locate staff development offerings to showcase the Harris program. 9. It is the objective of the redesign and rezoning plan to a) maintain educational presence in the affected area; b) improve the educational quality of offerings made available in that area; c) help racially balance the other schools in the Northern section of Pulaski County; d) reduce the disparate transportation burdens upon African American students; and e) attract students from home schooling and private schools back to District schools in the Sherwood area. It is expected that these - enrollment percentages will not substantially affect Clinton Elementary School in part because it is an interdistrict school where the ratios are substantially fixed. 10. The projected enrollment at Harris Elementary School will be a minimum of 200 students for the 2003-2004 school year and thereafter; and that present plans will allow a substantially greater enrollment if student demand, after appropriate recruitment efforts, increases. It is the objective of the parties to continue to review the racial balances within the school to maintain racial balances within Harris Elementary School. A primary method for achieving this objective will be to promote the rich and challenging curriculum that the district intends for this school will set it apart from the other schools similarly situated. 11. The parties agree that some faculty changes will be required. A concerted - and sustained effort will be made to provide the students with a racially diverse staff. 394491 -v1 3 12. The parties commit, in the manner provided by the Revised Desegregation Plan, to resolve their matters to the extent possible before either party seeks court review of any differences they have between them regarding Harris Elementary School issues. With these considerations in mind, it is the recommendation of the parties by their counsel that the Court enter this proposal as an order of the Court. Accordingly, having concluded a hearing, the Court approves the PCSSD motion dated December 16, 2002 (doc. no. 3719), as amended and supplemented by the foregoing paragraphs numbered 1 through 12. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AN~~CP ON/:-J..K-03 B \u0026lt;) 394491-v1 ,___ ___ - --- - UNITED STATES DI RICT JUDGE , .--i,9-1)3 DATE 4 I:,,\\ t: :; 'i\u0026gt; !r.,.U,- f; S1f..J..:(' / h ' ! ,. , '7-l_)e. ..,. . ..'),j ., .. . \u0026lt;:u._,,)r JAN .,_, ,v,11;,)~SA.s JAA 3 0 2DOJ 8 ,v,Es l'V ' IN THE Y: fv,ccc RMAc UNITED ST ATES DISTRICT COURT f(, CLERK EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, et al. DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of AD E's Project Management - Tool for January 2003. RECEIVED JAN 3 1 2003 OFFICE OF DESEGREGATION MONITORING Respectfully Submitted, MIKE BEEBE Attorney General G~ COLETTE D. HONORABLE #96016 Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 682-8123 Attorney for Arkansas Department of Education CERTIFICATE OF SERVICE I, Colette D. Honorable, certify that on January 30, 2003, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, ill Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Attorney at Law P.O. Box 17388 Little Rock, AR 72222-7388 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 ~~{Q_ Colette D. Honorable IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION - LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KA THERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of January 31, 2003 1111~- . ~~~iflt~m~;;~~i11111~;;.i~k,i.\u0026amp;1'.1~~r.im~q~l~!.tj B. Include all Magnet students in the resident District's average daily membership for calculation. 1. Projected Ending Date Last day of each month, August - June. This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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Central Arkansas Library System"],"dc_relation":null,"dc_right":["http://rightsstatements.org/vocab/InC-EDU/1.0/"],"dcterms_is_part_of":["Office of Desegregation Monitoring records (BC.MSS.08.37)","History of Segregation and Integration of Arkansas's Educational System"],"dcterms_subject":["Little Rock (Ark.)--History--21st Century","Education--Arkansas","Pulaski County Special School District","School districts","Office of Desegregation Monitoring (Little Rock, Ark.)","Education--Finance","Harris Elementary School (North Little Rock, Ark.)","Elementary schools","School integration","Little Rock School District","School attendance"],"dcterms_title":["Responses concerning site selection at Maumelle, reduction of the Office of Desegregation Management budget, appellants' motion to hold appeal in abeyance, Pulaski County Special School District's (PCSSD's) motion to approve the re-design of Harris Elementary School and for the rezoning of the Harris and Sherwood attendance zones."],"dcterms_type":["Text"],"dcterms_provenance":["Butler Center for Arkansas Studies"],"edm_is_shown_by":null,"edm_is_shown_at":["http://arstudies.contentdm.oclc.org/cdm/ref/collection/bcmss0837/id/1776"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":["Available for use in research, teaching, and private study. Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["64 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eDistrict Court, Joshua intervenors' response to motion regarding site selection at Maumelle and for other relief; District Court, Joshua intervenors' response to the reduction of the Office of Desegregation Management budget; Court of Appeals, appellants' motion to hold appeal in abeyance pending ruling by the District Court on the matter of recusal; District Court, plaintiff's response to the Office of Desegregation Management's 2002-2003 budget; Court of Appeals, plaintiff-appellee Little Rock School District (LRSD) response to appellant's motion to hold appeal in abeyance; District Court, Pulaski County Special School District (PCSSD) motion to approve the re-design of Harris Elementary School and for the rezoning of the Harris and Sherwood attendance zones; District Court, Pulaski County Special School District?s (PCSSD?s) reply to Joshua intervenors' response to motion regarding site selection at Maumelle and for other relief; District Court, order; Court of Appeals, Joshua intervenors' statement of issues and other documents This transcript was create using Optical Character Recognition (OCR) and may contain some errors. DNI\\IO!INOW NOl!V93H93S30 jQ 30HjQ RECEIVED lOOl 6- :BO JOHN W. WALKER, P.A. DEC - 9 2002 OFFICE OF C3J\\13,~3H DESEGREGATION MONITORING JOHNW. WALKER SHAWN CHILDS Mr. Christopher Heller . FRJDA Y, ELDREDGE \u0026amp; CLARK , 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Sam Jones A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKAl\\lSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 OF COUNSEL ROBERT McHENRY, P.A. December 6, 2002 DONNA J. McHENRY 8210 HENDERSON ROAD LITILE ROCK, ARK,INSAS 72210 PHONE: (501) 372-3425 F,1x (501) 372-3428 E~L4..IL: mchenryd@swbell.net Mr. Dermis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201. Nlr. Steve Jones JACK,LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 WRJGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building Mr. Richard Roachell ROACHELL LAW FIRM Plaza West Building 200 West Capitol Little Rock, Arkansas 72201 Re: LRSD v. PCSSD, Dear Counsel: 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 I Enclosed you will find Joshua Intervenors' Response to Motion Regarding Site Selecition at Maumelle and for Other Relief. JWW:lp Enclosure j IN THE l JNITED STATES DISTRJCT COURT\" ' -- ~ V EASTERl\"J DISTRJCT OF ARKANSAS:~ . WESTERl\"-J DIVISION - --- LITTLE ROCK SCHOOL DISTRJCT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL _DISTRJCTNO.l, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL PLAINTIFF DEFENDANTS INTER VEN ORS ; INTER VEN ORS JOSHUA INTERVENORS' RESPONSE TO MOTION REGARDING SITE SELECTION AT MAUMELLE AND FOR OTHER RELIEF The Joshua Intervenors respectfully request the court to defer approval of middle school site pending a hearing. Joshua does not opposed the site for it is in keeping with the provision of the revised desegregation plan. Joshua concerns relate to the extent the racial balance can be assured, I the burdens which will be imposed upon the black student who \\,Vill be recruited to attend the school, the recruitment process which will be Ltsecl to recruit students from little rock and the ft.mping for the ! I school. I I ! Joshua notes that the current plan is dependent upon state funding (Arkansas Detartment of Education) under the majority to minority transfer provisions. The state is not invol:ved in this proceeding and has not indicted whether it will continue the majority to minority funding . Joshua wishes to be assured that the proposed school will remain desegregated pursuant to the Settlement Agreement and funher that the State may not later argue that it was not involved in these -1- - proceedings. Joshua is informed that the Office of Desegregation Monitoring is preparing a repo1i regarding issues associated with site selection, recruitment and other matters associated with opening a new school. J oslma therefore believes that the Court should solicit the ODM vievvpoints regarding the school as well as possible problems which may be associated with funding withdrawal by the State of Arkansas before the Court issues an Order as requested by the Pulaski. County Special School District. WHEREFORE, the Joshua Intervenors request that the State of Arkansas be info1med of ' these proceedings and be afforded an opportunity at least to express their future support or lack of I ' support of M to i\\11 funding so that that matter may be addressed, and appe~led if necessary, before final plans regarding site selection and school construction are approved. Joshua also requests that the Court direct the ODM to provide a response to the petition filed by the PCSSD before finalizing any order of approval. Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted. 7chiv\\:V. Walker, AR Bar No.!64046 ' .,.,. / I ,1 (),HNW.WALKERP.A. i -1723 Broadway i Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) -2- Rickey Hicks, AR Bar No. 89235 Attorney at LavY Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663 -9900 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing lws been sent by fa)f and U.S . Mail, postage prepaid to the fc 1lowing counsel ofrecord, on this_\u0026amp;.,_ day of -~ , 2002: Mr. ChTistopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Am1 Brown Marshall ODM One Uni.on National Plaza 124 West Capitvi, Suite 1895 Little Rock, AR 72201 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 7220 l Mr. De1mis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rocle Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROA CHELL LAW FIRM Plaza West Building 415 N. McKinley. Suite 465 Little Rock, Arkansas 72205 John '. Walker -3- DNNOllNOW NOllY03l!03S30 d030WO lOOl o 1 ::13 Q3Al3~3l:I RECEIVED DEC 1 O 2002 J. J / r.:. u.!.: ';..;-'- _ { '-\"' sT1:: 0i.~rr,1r -, omcE OF ,J Liii';fF6-'-- 1-- 1 -:-,-,. DESEGREGATION MON11ORIKG Dr::c -~' -'--~::2,1s C Q 9 2002 IN THE UNITED STATES DISTRJCT co#,.~s If: iFi:: . EASTERN DISTRJCT OF ARKANSAS'------~':,., c:u:: ,--,,,. WESTERN DIVISION - --~ - 1 --:,.1 .. ~ - .t::. LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 WRW/ PULASKI COu1,ffY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. JOSHUA INTERVENORS' RESPONSE TO THE REDUCTION OF THE ODM BUDGET DEFENDANTS INTER VEN ORS INTER VEN ORS The Joshua Intervenors believe that the ODM budget should not be diminished in any way pending a determination that its role has to be substantially reduced. There are many unfinished tasks to be performed by the ODM and while there may be criticism of the ODM role and the past activity, there is no record basis for that criticism. We also note with concern that the Court anticil-iates reducing the role of ODM now that the Court has pa1tially released the Little Rock School District from further Court supervision. We note that that decision is on appeal. We also note that the ODM staff has already been materially reduced. We see no reason therefore for further reduction of the budget. We also question the necessity for the budget being reduced and request that the Court consider holding a hearing on the subject in the event that the Court is inclined to effectuate any budget reductions. Respectfully submitted, i ' l Robert Pressman, Mass Bar No. 4 5 22 Locust A venue Lexington, MA 02421 (781) 862-1955 alker, AR Bar No. 64046 W. WALKER, P.A. . 1 723 Broadway Little Rock, Arkansas 72206 (501) 3 74-3758 (501) 374A 87 (Fax) Ri cey icks, Attorney at Law Evergreen Place 1100 No1ih University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 2 l - CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing h~been sen~ and U.S. Mail, postage prepaid to the fo,lowing counsel of record, on this t day of , , 2002: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 . Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union Nati0nal Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 ,, .J -- ------ Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK; LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM . Evergreen Place 1100 North University Little Rock, Arkansas 72207 M,. Michael E. Gans, Clerk United States Court of Appeals 111 South 10th Street St. Louis, MO 63102 Re: 02-3867 Little Rock School District v. Joshua Intervenors Dear Mr. Gans, 22 Locust Avenue Lexington, MA 02421 December 10, 2002 Herewith is the Joshua Intervenors' \"Appellants' Motion to Hold Appeal in Abeyance Pending Ruling by the District Court on the Matter of Recusal.\" Mr. Walker requested me to file this motion and to sign it for him. As indicated in the certificate of service, it will be provided to other counsel and the desegregation monitor by Fax and U.S. Mail. cc to other counsel, Ms. Marshall, and Mr. Walker Sincerely, ~G'~ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT APPEAL NO. 02-3867 LITTLE ROCK SCHOOL DISTRICT, V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PLAINTIFF-APPELLEE DEFENDANTS INTERVENORS-APPELLANTS INTERVENORS Appellants' Motion to Hold Appeal in Abeyance Pending Ruling by the District Court on the Matter of Recusal The Joshua Intervenors, appellants in this appeal, respectfully move for the entry of an order holding this appeal in abeyance, pending the district court's ruling on a motion by the Joshua Intervenors seeking the recusal of the District Court (Hon. William R. Wilson, Jr.) pursuant to 28 U.S.C. Sec. 455 (b) (2). Intervenors also seek such other related relief. Intervenors-Appellants make the following allegations in support of this motion: 1. On September 13, 2002 the District Court ruled that the Little Rock School District had attained partial unitary status. 2. After the denial by the District Court of post-trial motions, these intervenors filed a notice of appeal on November 12, 2002. 3. On November 25, 2002, these intervenors filed in the District Court, pursuant to 28 u.s.c. Sec. 455(b)(2), a motion 1 seeking the recusal of the District Court and the vacating of all orders, rulings, and judgments entered by the District Court subsequent to its receiving assignment of this case on January 3, 2002, including the Memorandum Opinion and the Judgment which are the subject of this appeal. See Attachment (Items 3710-11); see also Items 3713-15. 4. On November 22, 2002, this court distributed a briefing schedule for this appeal. 5. This appeal could be affected by the motion in the District Court in multiple ways. For example, it could be mooted, if the District Court granted the motion. In contrast, if the District Court denies the motion, these Intervenors might well appeal that judgment -- and it would be in the interests of judicial economy for the recusal issue to be decided in this Court before the merits issue, which could be mooted by this Court's ruling on the matter of recusal. WHEREFORE the Joshua Intervenors respectfully pray that this Court enter an order: (a) holding this appeal in abeyance, pending the District Court's ruling on a motion by the Joshua Intervenors' seeking the recusal of the District Court; (b) requiring the Joshua Intervenors to inform this court of whether the District Court's ruling on recusal will prompt a further appeal by Joshua Intervenors, not later than 10 business days after the District Court's judgment on that issue becomes final; 2 (c) allowing the other parties in the case, whose counsel are - identified on the certificate of service, to inform this Court within the same time period whether the District Court's ruling on recusal will prompt an appeal by that party: and (d) granting such other relief as the needs of justice may require. ~e~-- Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Respectfully submitted, ~~w. w~ (~ RP) John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 Certificate of Service I hereby certify that this motion has been served by FAX and U.S. Mail on the following counsel and the Desegregation Monitor on December 10, 2002. Christopher Heller Friday, Eldridge \u0026amp; Clark 400 West Capitol Little Rock, AR 72201 Mr. Steve Jones Jack, Lyons and Jones 425 West Capitol Little Rock, AR 72201-3472 Ms. Ann Marshall Desegregation Monitor 124 West Capitol #1895 Little Rock, AR 72201 3 Sam Jones Wright, Lindsey \u0026amp; Jennings 200 West Capitol Little Rock, AR 72201 Mr. Richard Roachell Roachell Law Firm 415 N. McKinley, #465 Little Rock, AR 72205 Dennis Hansen Office of the Attorney General 323 center st. Little Rock, AR 72201 Robert Pressman U. S. District Court, Eastern District of Arkansas Page 1 of 245 . _. SEJ\\RCfl. . to.GIN SUGGESTIONS -:USER PREFS COURlWATCH HELP , .. ~ - . . - . RACER U.S. District Court Case Search Docket Sheet for 4:82-CV-866 U.S. District Court, Eastern District of Arkansas - Click here for Caption Page j Proceedings include all events Ct:-::.=..7.F:D.il:ea:dtJ e I DNooc. II. I mage II D escrip tio n :===::;:=======:: 11/26/2002 3715 Yes: 1 Page(s): 21 KB; PDF :=========: ORDER by Judge William R. Wilson any party that wants to respond to Joshua's Motion to Recuse should file the response as soon as possible. In addition to any other matter any such party might want to address, I would beinterested in comments regarding the law clerk issue (cc: all counsel) [Date Entered: 12/02/02, By: de] B Yes: 7 Page(s); IVlliMORANDUM BRIEF by Littl_e Rock School in support 11/26/2002 3714 197 KB; PDF of response to Joshua's motion for vacating of orders and recusal [3713-1) [Date Entered: 11 /26/02, By: bm] ::=====: 11/26/2002 B3713 Y es: 3 Page(s); 41 the vacating of orders and recusal [3710-1) [3710-2) [Date RESPONSE by Little Rock School to Joshua's motion for KB; PDF Entered: 11/26/02, By: bm] :======: B NOTICE by Arkansas Education of filing of ADE's Project Yes: 3 Page(s); 36 11 /26/2002 3712 KB; PDF Management Tool for November 2002 [Date Entered: 11 /26/02, By: bm] !:=====: 1112512002 3711 Yes: 19 Page(s); of motion to recuse district judge [3710-1), of motion to B IVlliMORANDUM by Joshua intervenor plaintiff in support 721 KB; PDF vacate orders, rulings and judgments [3710-2) [Date Entered: 11/25/02, By: de] :=====~ B MOTION by Joshua intervenor plaintiff to recuse district Yes: .H...:Page(s); 11/25/2002 3710 290 KB; PDF judge, and to vacate orders, rulings and judgments [Date Entered: 11/25/02, By: de] 1:====~ ::::::========:~====================: B ORDER by Judge William R. Wilson the parties have to 1112512002 3709 Yes: 10 Page(s); and including 15 days from entry of this Order to file 240 KB; PDF objections regarding the proposed 2002-2003 budget of the ODM (cc: all counsel) [Date Entered: 11/25/02, By: de] 1:====~ :======~::========================:! [JI I DOCKETING LETTER: 8 USCA Number 02-3867; 11/25/2002 No counsel to proceed on appendix [Date Entered: 11/25/02, By: de] =======' ~=========:~===================~! nn ORDER by Judge William R. Wilson granting motion to Yes: 3 Page(s): 51 extend time to respond to PCSSD'S motion for approval of http ://www.are.uscourts.gov/wconnect/wc.dll?usdc_racer~get_casejb~4:82-cv-866~~All+Dc. .. 12/6/02 -- - -------- ------- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED DEC 12 2002 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS PLAINTIFF'S RESPONSE TO THE ODM'S 2002-2003 BUDGET The LRSD for its Response to the ODM's 2002-2003 Budget states: 1. It is the LRSD's understanding that the ODM's 2002-2003 budget covers the - period of July 1, 2002 through June 30, 2003. ODM's 2002-2003 was submitted to the Court on November 20, 2002 and provided to the parties by Order filed November 25, 2002. While the LRSD has concerns about the ODM's budget, the LRSD does not believe those concerns can be addressed in a fair and reasonable manner given that the budget cycle is almost half over. 2. The LRSD has two primary's concerns about the ODM's 2002-2003 budget. First, while the LRSD recognizes that the ODM has decreased its budget for 2002-2003, the LRSD being granted partial unitary status should permit the ODM to further decrease its staff. Staff salary and benefits constitute 86% of the ODM's budget. Additional staff reductions should permit the ODM to further reduce its budget for 2003-2004. 3. Second, the LRSD being granted partial unitary status renders inequitable the Court's Interim Order of June 27, 1989 apportioning the cost of ODM to the school districts on a per pupil basis. The LRSD proposes that the ODM be directed to work with the school districts to develop a more equitable means of apportioning the Districts share of the cost of ODM and to submit with its 2003-2004 budget a new means of apportionment. 4. The LRSD respectfully requests that Court direct the ODM to submit its proposed 2003-2004 budget on or before May 1, 2003 such that the Court may approve the budget before the 2003-2004 budget cycle. WHEREFORE, the LRSD prays that the Court enter an Order directing the ODM to consider additional staff reductions for 2003-2004; directing the ODM to work with the school districts and the State or Arkansas to develop a more equitable means of apportioning the cost of ODM and to submit with its 2003-2004 budget a new means a apportionment; and directing ODM to submit its proposed 2003-2004 budget on or before May 1, 2003. F:IHOME\\FENDLEY\\LRSD 2001 \\unitary-response-ODM-budget.wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol :~==--=--72-2_0_1__:-:3.~~4.4~93=-----/-, _V_ __\" '------\"_ ...._ 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on December 10, 2002: Mr. John W. Walker JOHNW. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:IHOME\\FENDLEYILRSD 2001 \\unitary-rcsponse-ODM-budgct.wpd 3 IN THE UNITED STATES COURT OF APPEAL FOR THE EIGHTH CIRCUIT RECEIVED OEC 1 3 2002 QfflC0F DRHI\\EGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF-APPELLEE V. APPEAL NO. 02-3867 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS INTER VEN ORS-APPELLANTS INTERVENORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL PLAINTIFF-APPELLEE LITTLE ROCK SCHOOL DISTRICT'S RESPONSE TO APPELLANT'S MOTION TO HOLD APPEAL IN ABEYANCE Plaintiff-Appellee Little Rock School District (\"LRSD\") for its Response states: 1. This appeal should not be held in abeyance pending the District Court's ruling on the Joshua Intervenors-Appellants' (\"Joshua\") Motion to Recuse filed November 25, 2002. This is a case of substantial public importance which should be decided without undue delay. 2. The District Court has already indicated that it will not recuse based on the grounds asserted by Joshua. See Order filed October 29, 2002, attached hereto as Exhibit A. Tfius ,' this appeal will not be rendered moot. 3. The \"interests of judicial economy\" would not be served by this Court deciding the recusal issue before the merits of this appeal. For the reasons set forth in the District Court's Order filed October 29, 2002, it is clear that 28 U.S.C. 455(b)(2) does not require the District Court to recuse. Consequently, delaying this appeal to allow this Court to first consider the recusal issues cannot be justified. If Joshua decides to appeal on the recusal issue, that appeal may be consolidated with this appeal for oral argument. The issues in the two appeals will be - completely different making it unnecessary for them to be briefed at the same time. Thus, \"interests of judicial economy\" would not be served by holding the this case in abeyance. WHEREFORE, the LRSD prays that Joshua's Motion be denied; that the LRSD be granted its costs and attorneys' fees expended herein; and that the LRSD be awarded all other just and proper relief to which it may be entitled. F:\\HOME\\FENDLEY\\unitary-appeal-responsc-mot-abey.wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Lilli~ (5~ B : C::::.:ller 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on December 12, 2002: Mr. John W. Walker JOHNW. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:IHOME\\FENDLEY\\unitary-appeal-responsc-mot-abcy.wpd 3 u.foilki~J?uAT EASTERN DISTRICT ARKANSAS UNITED ST ATES DISTRICT COURT . . EASTERN DISTRICT OF ARKANSAS OCT 2 9 2002 WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. Defendants MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER DENYING MOTION FOR HEARING REGARDING RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDINGS Intervenors Intervenors 1. On July 22 - July 24, 2002, an evidentiary hearing was held in this case on the issues raised by Little Rock School District's motion for unitary status. 2. On September 13, 2002, a memorandum opinion was entered which ruled upon the issue of unitary status. 3. Last Friday, October 25, 2002, Joshua Intervenors filed a Motion for Hearing Regarding Relevance of28 U.S.C. 455 to the Present Proceedings, raising two issues: a. Whether I should disqualify because approximately fifteen years ago I represented The Honorable Henry Woods, the presiding judge in this case at that time. This representation was in connection with a mandamus petition by the LRSD and Joshua Intervenors (the latter represented by Mr. Walker, among others); :,E. X,, HJ B I ., .. b. Ms. Janet Pulliam, former counsel ofrecord for a party in this case,joined my staff on September 26, 2002, as a law clerk (she came aboard nearly two weeks after the September 13 Memorandum Opinion). 4. I will deal with the issue involving Ms. Pulliam first. From the outset, Ms. Pulliam has been kept completely separate from this case, and will be in the future. Attached as Exhibits A and B to this order are interoffice memos dealing with this issue. I believe they resolve this question. SERVING AS A LAWYER IN THE MATTER IN CONTROVERSY 5. I turn now to my representation of Judge Woods in the 1987 mandamus proceeding. LRSD and Joshua Intervenors filed a petition for a writ of mandamus, asking that the Eighth Circuit disqualify Judge Woods. LRSD v. PCSSD, 839 F.2dl296, 1301 (8th Cir. 1988). I entered the case, at that time, for the limited purpose ofrepresenting Judge Woods before - the Eighth Circuit in connection with the request that he be disqualified. Crucially important is the fact that the mandamus issues had nothing to do with the merits of the underlying case. The mandamus was argued orally before the Eighth Circuit (sitting in Little Rock) on November 3, 1987, and, two days later, the Court handed down its decision, denying the request for mandamus. The November 5 opinion, LRSD v. PCSSD, 833 F.2d 112, 113 (8th Cir. 1987), was very brief, and included this language: Another opinion will be filed in due course further explaining our reasons for the conclusions expressed today with respect to the election and disqualification matters, and addressing as well the other questions raised in these cases. I was shown as counsel of record \"for Judge Woods in mandamus\" in the November 5 decision. Thereafter, I had no further involvement. 2 6. The Eighth Circuit handed down a supplemental opinion on February 9, 1988,LRSD v. PCSSD, 839 F.2d 1296 (8 th Cir. 1988). In this opinion, the Court explained, in more detail, why the petition for mandamus had been denied in the November 5 opinion. I am not shown as counsel ofrecord in the February 9 opinion. 7. Actually, the answer to Intervenors' question appears in LRSD v. PCSSD, 833 F.2d 112. The court stated: [A] lawyer with whom Judge Woods once practiced appeared at one time for an amicus curiae in a case called Clark v. Board of Educ. of the Little Rock School Dist., No. LR-C-64-155. The District Court first consolidated Clark with the instant case, then later severed it and returned it to the docket of another judge. Disqualification is sought under 28 U.S.C. 455 (b)(2), which requires disqualification \"where in private practice ... a lawyer with whom [the judge] previously practiced law served during such association as a lawyer concerning the matter.\" We disagree with this argument. Clark was a closed case , or at most dormant, when it was consolidated with this one, and in any event it has now been severed. We do not think that such a fleeting and tenuous connection between the present case and the judge's partner's activities while in practice years ago, was intended by Congress to require recusal. Id. at 113. Likewise, my appearance fifteen years ago was brief (\"transitory''). I represented none of the parties, and, as stated above, the narrow recusal issue that I addressed on behalf of Judge Woods had nothing to do with the merits of the underlying case. 8. In United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998), the Court held that the recusal of a district judge was not required when the judge, as a lawyer, represented a creditor of the defendant (in a bankruptcy fraud case) because the creditor's debt played no part in th~ defense or prosecution of the case. In other words, the key here is the phrase the \"matter in controversy.\" In United States v. Cleveland, 1997 WL 222533, * 11 (E.D. La. May 5, 1997), the Court stated: In this Court's view, a former representation should trigger the \"matter in controversy\" requirement if the issues with which it dealt are put \"in issue\" in the 3 subsequent case in the sense that they need to be resolved by the judge who is presiding over the subsequent case. If the judge need not resolve an issue that either she or her former partners were involved in, then there is no appearance of impartiality and the purpose of Section 455(b )(2) is satisfied. In reaching this conclusion, the district judge in Louisiana cited LRSD v. PCSSD, 839 F.2d 1296. WAIVER \u0026amp; ESTOPPEL 9. On top of the fact that my appearance in the case was brief and did not involve, in any way, any of the issues pending before me, a motion to disqualify me under section 455 would not be timely. On January 3, 1984, the Joshua Intervenors, represented by Mr. John W. Walker and Mr. Wiley A. Branton, Jr., filed a Petition to Intervene (docket no. 452). On April 23, 1984, Judge Woods entered an Order ( docket no. 4 70) denying Joshua's Petition to Intervene. On May 23, 1984, the Eighth Circuit entered an Order (docket no. 565) directing Judge Woods to grant Joshua permission to intervene as parties in this case. Thus, Mr. Walker was counsel ofrecord for Joshua before, during, and after the 1987 mandamus proceeding in which I appeared as counsel for Judge Woods. As the Ninth Circuit pointed out in E. \u0026amp; J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (91h Cir. 1992): It is true that under section 455 a judge may have an obligation to recuse himself or herself without a motion from one of the parties; it \"is self-enforcing on the part of the judge.\" However, it does not necessarily follow that a party having information that raises a possible ground for disqualification can wait until after an unfavorable judgment before bringing the information to the court's attention. It is well established in this circuit that a recusal motion must be made in a timely fashion. \"The absence of such a requirement would result in ... a heightened risk that litigants would use recusal motions for strategic purposes.\" While there is no per se rule that recusal motions must be made at a fixed point in order to be timely, . .. such motions \"should be filed with reasonable promptness after the ground for such a motion is ascertained.\" (Emphasis adde~.) (Citations omitted.) 4 10. On January 3, 2002, this case was assigned to me by random selection (docket no. 3570). At that time, Mr. Walker knew full well that, thirteen years earlier, I had represented Judge Woods in the mandamus proceeding that Mr. Walker, himself, helped initiate in an attempt to have Judge Woods removed from this case. See LRSD v. PCSSD, 839 F.2d at 1301 . Yet, it was only after my September 13, 2002 Memorandum Opinion ruling against Joshua on 5 of the 6 asserted grounds for denying unitary status that Joshua's lawyers chose to file the motion for a section 455 hearing. If there ever was a case of waiver and estoppel, this is it. I hasten to point out again, however, that even if Joshua had not elected to take a ''wait and see approach\" to deciding whether to file their section 455 motion, there would be no reason for me to recuse since I have never served \"as lawyer in the matter in controversy.\" 11. In Joshua's section 455 motion, there appears this curious language: The Court, in writing its Opinion dated September 13, 2002, included virtually all the citations from the Court of Appeals .. . hereto but did not refer to, mention or address these two important Opinions in which the Court, participated as a trial attorney in private practice. Motion at 3. One reading the above quoted language with a jaundiced eye might take it to suggest that I attempted to hide my 1987 representation of Judge Woods in the mandamus proceeding. I described the language as \"curious\" since, as noted, Mr. Walker was counsel of record for Joshua at the time and one of the moving parties who filed the petition for writ of mandamus. See LRSD v. PCSSD, 839 F.2d at 130 l. Thus, it is clear beyond peradventure that Mr. Walker knew of my being involved in this case on behalf of Judge Woods. For Joshua's benefit-- I will explain my reason for not citing these cases -- a reason much less sinister than Joshua may be suggesting: they had no bearing on - the unitary status issues that were decided in my September 13, 2002 Memorandum Opinion. 5 CONCLUSION 12. Since this Order fully sets forth my involvement in, and my knowledge of, the matters raised in Joshua's section 455 motion, there is no reason for a hearing, i.e., there is nothing material I could add to the above. And, in my opinion, I have fully answered the \"concerns\" of Joshua. 13. If and when Joshua's counsel obtain copies of the briefs I filed in connection with the mandamus issue, 1 I will be willing to look at the issue again if, and only if, these briefs reveal that my participation in the case was significantly different from my clear recollection. At that time, however, Joshua's counsel would be required to convince me that raising the question at this late date, after losing, was not for \"strategic purposes.\" 14. Joshua's pleading raises thequestionoftherelevance of28 U.S.C. 455 to the present proceedings. Answer: none. SUGGESTION 15. It is obvious that Joshua's counsel feel aggrieved by my September 13, 2002 Memorandum Opinion. I again commend the Eighth Circuit Court of Appeals to them. That Court has had a world of experience in hearing disappointed suitors. In fact, this is its forte. IT IS SO ORDERED this 7--1/ j tay of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE Wll)W)JLE ~ AND/OR 79(a~ ON ~f/!!?._~y~ 1My file has long since been destroyed. 6 \\ ij \\j'-' BILL ~ILSON JUDGE TO: DATE: RE: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 Facsimile (501) 604-5149 MEMORANDUM All Hands at 423 U.S. Courthouse September 30, 2002 LRSD case Janet Pu Ilium was, at one time, one of the attorneys for the Little Rock School District. So, she will not be involved in this case in any way whatsoever, directly or indirectly. EXHIBIT A .. , Kay Holt - 09/25/2002 1 U 3 AM Per Judge .. ... To: Mary Johnson/ARED/08/USCOURTS@USCOURTS, Christa Newburg/ARED/08/USCOURTS@USCOURTS, Valerie Glover/ARED/08/USCOURTS@USCOURTS, Christina Conrad/ARED/08/USCOURTS@USCOURTS cc: Subject: LRSD case When Janet comes on board we've got to put a Chinese wall between her and the LRSD case. She was involved in it at some point. EXHIBIT B EDWARD L . WRIGHT (1903-1977) ROBERT S. LINDSEY (1913-1991) ISAAC A. SCOTT, JR . JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F . COX , JR . TROY A. PRICE PATRICIA SIEVERS HARRIS JAMES M. MOODY. JR . KATHRYN A . PRYOR GORDON S. RATHER, JR . TERRY L . MATHEWS DAVID M. POWELL ROGER A. GLASGOW C . DOUGLAS BUFORO. JR . PATRICK J . GOSS ALSTON JENNINGS, JR . JOHN R. TISDALE KATH LYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY Ill LEE J . MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T. COLEMAN JAMES J . GLOVER EDWIN L. LOWTHER, JR. CHARLES L. SCHLUMBERGER WALTER E. MAY GREGORY T. JONES H. KEITH MORRISON BETTINA E . BROWNSTEIN WALTER McSPADDEN ROGER D. ROWE JOHN 0 . DAVIS JUDY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. United States District Court 600 West Capitol, Room 423 Little Rock, Arkansas 72201 -3325 200 WEST CAPITOL AVENUE SUITE 2300 LITTLE ROCK, ARKANSAS 72201-3699 (501) 371-0808 FAX (501) 376-9442 www . wlj .com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R . LINDSEY JAMES R . VAN DO VE R Writer's Direct Dial No . 501-212-1273 mJones@wlj .com December 16, 2002 J . MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J . SALLINGS WILLIAM STUART JACKSON MICHAEL 0 . BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C . TAO BOHANNON KRIS TI M. MOODY J . CHARLES DOUGHERTY M. SEAN HATCH J . ANDREW VINES JUSTIN T. ALLEN CHRISTINE J . DAUGHERTY , Ph .D. ' MICHELLE M . KAEMMERLING ERIKA ROSS SCOTT ANDREW IRBY HOLLY A . ADEE MICHELLE HARGIS DILLARD PATRICK 0 . WILSON Licensed to practice before the United States Patent and Trademark Office RECEIVED DEC 1 7 2002 OfACEOF DESEGREGATION MONITORJNG Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: Enclosed for the Court's review are courtesy copies of the PCSSD's motion as respects Harris Elementary School and the Harris and Sherwood area attendance zones. MSJ:ao Encl. cc/w/encl.: 385422-v1 Hon. J. Thomas Ray Mr. John W. Walker Mr. Dennis R. Hansen Mr. Christopher Heller Mr. Stephen W. Jones Ms. Ann Brown Marshall Mr. Richard Roachell Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP _/fL7P-- uam~ones, Ill IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. RECEIVED MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEC 1 7 2002 OFACE OF DESEGREGATION MONITORING PCSSD MOTION TO APPROVE THE RE-DESIGN OF HARRIS ELEMENTARY SCHOOL AND FOR THE REZONING OF THE HARRIS AND SHERWOOD ATTENDANCE ZONES PCCSD for its motion, states: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. After an exhaustive review and analysis, numerous community meetings and recommendations from the \"Harris Steering Committee\", the PCSSD proposes to revamp the curriculum at Harris Elementary, to designate it as a specialty school and to modify its attendance zones, primarily to reduce the busing burden borne by African American students. 2. Attached as Exhibit A is a narrative and statistical summary of the pro.posed modifications. The narrative includes the particulars of what is proposed, the reasons why, a description of the process followed to reach the recommendations, and a list of the parents, educators, Joshua representatives and others who comprise the - , Harris Steering Committee. 385142-v1 3. Exhibit B is a serial statistical depiction of the proposed student movement, the schools affected and the Geo Codes involved. 4. Attached as Exhibit C are maps depicting the current attendance zones and the proposed modifications. 5. The PCSSD believes that this plan and these changes present the District's best plan for ultimately desegregating Harris Elementary and for addressing needed changes in the described student assignment areas which, in most instances, have not been adjusted since 1989. WHEREFORE, the PCSSD prays that the Court approve its proposed re-design of Harris and the rezoning of the Harris and other Sherwood area attendance zones. 385142-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 By __ _,:;...-~----,,\u0026lt;-1===-------- 060) A aunty Special s 2 CERTIFICATE OF SERVICE On December f/4, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 385142-v1 3 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 -PROPOSED RE-DESIGN OF HARRIS AND REZONING OF THE HARRIS AND SHERWOOD ATTENDANCE ZONE 2003-2004 November 12, 2002 Executive Summary During the February 12, 2002, Board Meeting the former Superintendent, Dr. Smith, told the Board that outdated attendance zones for Sherwood, Oa.kbrooke, Clinton, and Harris Elementary schools were causing lost enrollment and diminished housing development. He asked that the Board direct the Administration to proceed with steps necessary to bring a defined proposal for Board and court approval. As part of the plan, Dr. Smith asked the Board to approve planning, with community and staff input, for re-designing Harris Elementary, He said that preliminary plans for Harris included more computer technology, a renewed emphasis on academics plus more staff for physical education, music and art, a preschool class, and an extended-year program. The Board voted to undertake planning steps in compliance with the District's desegregation plan to develop attendance rezoning proposals and a re-design and reconstituting of Harris Elementary. To implement the re-design of Harris Elementary during the 2003-2004, it is necessary to have the program planned and to budget for some expenses during the2002-2003 school year. Background It has become necessary to rezone the Harris and Sherwood attendance zones to relieve the burden of busing borne by the black students in the McAlmont, Rixie, and Brushy Island community and white students in the Sherwood community. Students from these two areas have been bused since the beginning of integration in the Pulaski County Special School District. Desegregating Harris Elementary has been difficult because many Sherwood and Indian Hills communities have become more racially balanced to the point that busing is not as necessary. A special program with an acceptable theme has been planned for Harris Elementary. The purpose is to enhance the learning opportunities of black students attending this school and to attract whites that would volunteer because of the special programs offered at the school. Meetings were held on May 13, 2002, May 16, 2002, September 17, 2002, September 24, 2002, and November 4, 2002, to give parents and patrons the opportunity to have input into the process. The Harris Steering Committee was created from the co1mnunity meetings and met on October '14, 2002, October 21, 2002 and October 28, 2002 to help develop plans for the re-design of Hanis Elementaiy School. Representatives from the Office of Desegregation Monitoring, Joshua Intervenors, and PACT attended community and steering committee meetings. EXHIBIT 1 4 REZONING The consideration of maintaining racial balance in the Sherwood schools was done by reassigning students who live in Sherwood tci schools in that community. Tbis includes the students who live east of Hwy 167 in the Sherwood city limits. Proposed Sherwood school attendance zones meet the required 20% racial balance. Clinton Elementary Magnet also located in the Sherwood community meets the inter-district racial balance requirement, which is 50% black and 50% white. Black students who live in the Harris school community, which is comprised ofMcAlmont, Rixie, and Brushy Island, will be reassigned to Harris Elementary. The proposed reassignment of black students to Harris Elementary will increase the black student enrollment from 69% to 80% (see student enrollment data below from Pulaski County Special School District 2002 Quarterly Report). Harris will become a racially identified school with special programs to enhance learning. Harris Elementary Capacity 525 Current Black Population 117 69% Proposed Black Population 187 81% Current White Population 53 31% Proposed White Population 45 19% Total Enrollment 170 Total Enrollment 232 Clinton Elementary Capacity 833 Current Black Population 334 55% Proposed Black Population 316 55% Current White Population 273 45% Proposed White Population 257 45% Total Enrollment 607 Total Enrollment 573 Oakbrooke Elementary Capacity 500 Current Black Population 102 33% Proposed Black Population 156 39% Current White Population 207 67% Proposed White Population 244 61% Total Enrollment 309 Total Enrollment 400 Sherwood Elementary Capacity 460 Current Black Population 123 36% Proposed Black Population 171 43% Current White Enrollment 219 64% Proposed White Enrollment 230 57% Total Enrollment - 342 Total Enrollment 401 Sylvan Hills Elementary Capacity 456 Current Black Population 150 40% Proposed Black Population 126 37% Current White Population 227 60% Proposed White Population 219 63% Total Enrollment 377 Total Emollment 345 2 - PROBLEM DEFINITION The challenge in planning the program for Harris is four-pronged: 1. The specialty program should not duplicate any magnet program in Little Rock or specialty program in Pulaski County; 2. Designate Harris as a racially identifiable school; 3. The program must attract large numbers of white students; 4. The specialty program must attract black students in the Harris attendance zone. Those programs should provide: a. A focus on an enriched health and science curriculum b. Teachers trained in the sciences and technology c. Integrated technology d. An extended year program (YRE) e. Extended time opportunities for students f. Early childhood learning center g. Physical education and wellness Analysis of Alternatives The planning committee started the process by brainstorming about ways to attract students to Harris Elementary. The committee listed everything they believed should be offered. All ideas were discussed; prioritized ideas were researched. Recommendations The Planning Committee proposes the following recommendations for the Board's consideration: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. The overall focus should be an enriched health and science curriculum. Harris Elementary should be designated as a racially identifiable school. Harris Elementary should be officially designated as a specialty school. The program should be interdisciplinary . . An extended year program should be provided with academic intersessions. The facility must be well maintained and attractive. The District should explore ways that the labs, media center and gym could be opened after school and at night. The school must have access to state-of-the-a1i technology. A District pre-school class should be provided. The District should actively seek corporate, research, and community support for the program in addition to partnerships with the medical community at large. The District shall work beyond the elementary level to develop a plan for students' continuation of study. 3 I 12. There should be a strong recruiting and public relations program. 13. Extended time opportunities (before and after school hours) will be made available for students. 14. The program will partner with a District elementary school (majority white) to ensure that both student populations have opportunities for cross-cultural interactions. OBJECTIVE The objective of Harris Elementary Health and Science Specialty School is to provide a rich and challenging curriculum that will attract white students from outside the Harris attendance zone and maintain the students zoned for Harris. An attractive, safe school environment is a necessary component to accomplishing the objective. 4 HARRIS RE-DESIGN AND IMPLEMENTATION PLAN A. Program Planning Responsibility 1. Conduct community meetings Learning Services/Equity 2. Identify Harris Steering Committee Learning Services/Equity Members 3. Develop a Proposal to present to the Harris Steering Committee Board 4. Obtain Board support Learning Services/Equity 5. Submit the Proposal to the court Equity B. Program Implementation Pending Court Approval 1. Explore partnerships with the medical Learning Services community 2. Create job descriptions for the new Learning Services positions 3. Begin building renovations Support Services 4. Develop curriculum for the Health Learning Services Science Specialty Program 5. Order all equipment Learning Services 6. Develop recruitment plan Learning Services/Pupil Personnel 7. Recruit students Learning Services/Pupil Personnel 8. Post new positions Human Resources 9. Hire Harris staff under reconstitution Principal approach 10. Conduct curriculum inservices for the Learning Services/Staff staff Development/Principal 5 When May 2002-2003 Oct2002 Oct-Nov 2002 Nov 12, 2002 Dec 2002 Dec 2002-Mar 2003 Jan 2003 Jan 2003-Aug 2003 Jan 2003-July 2003 Feb-Mar 2003 Jan 2003 Feb-May 2003 April2003 Spring/Summer 2003 June-Aug 2002 HARRIS RE-DESIGN SUMMARY OF RECOMMENDATIONS 1. Staff a. Specifically hired for position b. Trained in health, science, and technology c. Science specialist d. Health/wellness/P .E.specialist e. Pre-K teacher/Pre-K Aide f. Nurse 2. Facilities a. Well-maintained and attractive b. Open after hours c. High tech d. Science Lab e. Health Fitness Center f. Early Childhood Center 3. Curriculum a. Interdisciplinary b. Enriched science and health curriculum aligned with state standards c. Integrated technology 4. Organization a. Year round education (YRE) b. Strong security c. Extended day (before and after school) d. Community based 6 HARRIS RE-DESIGN ESTIMATED COST ANALYSIS District Estimated Cost Specialty Personal \u0026amp; Equipment Science Specialist . lFTE 49,313.00 Health/W ellness/P .E. Specialist lFTE 49,313.00 Nurse lFTE 40,000.00 PCSSD Early Childhood Center Start-up 11,000.00 PCSSD PK Teacher 1 FTE 49,313.00 PCS SD PK Aide 17,000.00 Head Start PK Teacher Head Start PK Aide Head Start - Start Up Year Round Education Principal 12 month contract 18,600.00 Intersession Teachers (15 days) 29,089.00 Transportation (15 days) 7,217.55 Utilities (15 days) 3,000.00 Bookkeeper 12 contract 2,141.00 Custodian 3,385.00 Extended Day Teachers after school 51,264.00 Teachers before school 8,544.00 Voyager Program 2,000.00 Utilities 15,000.00 Extended Day for 15 Intersession Days Intersession before school 480.00 Intersession after school 2,880.00 Technology Computer Lab (3 0 stations) Science Lab Totals 359,539.55 Other Funding Source Cost 25,000.00 25,000.00 14,000.00 78,000.00 10,000.00 152,000.00 Grants and other Sources of Revenue will be actively pursued to fund these programs. n1, c... c.. D... ), rc? V t\\- -- ,/,- c.1 o V,, }l)\\.i,\"' ,~ '- ,,,,.,. ..... ' \\ ~ ~ -t .J T V 7 \" . HARRIS RE-DESIGN - CAPITAL OUTLAY ESTIMATE Item Cost Roof 500,000.00 Sports Floor 50,000.00 Water Proof the Gym and Gutters 30,000.00 Electrical/Technology Upgrade 200,000.00 Structural Integrity 10,000.00 Renovate Bathrooms 20,000.00 Heating and Air 40,000.00 Flooring 50,000.00 Paint Interior of Buildings District Persom1el Spray Paint Interior of Gym District Personnel Total 900,000.00 - - 8 - Chris Young Stephanie J?onald Bobby Carey Cherrie Johnson Gwen Williams Horace Smith Delores Tate Johnnie Mass Val Marshall Joseph Taylor Ophelia J olmson Victor Roy Florence Lyons Mable Bynum Vicky Drake Ricki Bailey Linda Remele Karl Brown Brenda Bowles Shari 'Coston Carolyn Cooley Monica Bolden Deen Minton Harris Steering Conm1ittee 2002-2003 School School School School Board ODM Community Community Community (Parent) Community Community Community (Parent) Community Community Community (Parent) District District District District District Joshua Joshua (Parent) PACT 9 Proposed changes Harris-Sherwood Areas October 22, 2002 Harris students west of Hwy. 67 /167 Loss to Harris Black students 38 White Students 32 Total 70 Students east of Hwy. 67/167 Black White Total Loss to Sherwood Elem. 12 2 14 Loss to Oakbrooke Elem. 5 0 5 Loss to Clinton Elem. 16 17 33 Loss to Sylvan Hills Elem. 26 0 26 Loss to Cato Elem. 36 1 37 Loss to Adkins Elem. 11 4 15 106 24 130 Harris Elem. Gain 143 students Lose 70 students net gain 73 students Black 194 81 % White 45 19% Total 239 Dupree Elem. Gain 8 students Lose 0 students net gain 8 students Black 115 34% White 223 66% Total 348 Sherwood Elem. Gain 62 students Lose 14 students net gain 48 students Black 171 42% White 230 58% Total 394 Oakbrooke Elem. Gain 52 students Lose 5 students net gain 47 students Black 156 39% White 244 61% Total 400 Clinton Elem. Gain 2 students Lose 33 students net loss 31 students Black 316 55% White 257 45% Total 573 Sylvan Hills Elem. Gain O students Lose 26 students net loss 26 students Black 126 37% White 219 63% Total 345 Cato Elem. Gain 0 students Lose 37 students net loss 37 students Black 66 19% White 279 81 % Total 345 Adkins Elem. Gain 0 students Lose 15 students net loss 15 students Black 132 54% White 112 46% Total 244 EXHIBIT I STUDENTS IN HARRIS AND CONTIGUOUS ZONES (Without Integrative Transfers) ( east of Hwy 67-167) September 2002 Geo Codes B W 1501 1505 1510 1512 1515 1518 1521 1556 1557 1558 1559 1560 1561 1596 3730 3733 3755 3756 3757 3902 3940 3963 3975 0105 0141 0 4 7 5 2 0 11 21 15 0 13 15 4 1 7 5 5 12 5 6 0 11 9 14 22 Totals 194 81 % 0 2 5 0 0 4 4 0 0 0 1 4 6 0 0 Area in McAlmont 0 8 2 8 0 0 0 0 1 0 45 19% 239 total STUDENTS IN HARRIS LIVING IN SHERWOOD or JACKSONVILLE (West of Hwy. 67-167) September 2002 Geo Codes B W J acksonvi I le 3988 3989 3990 Totals Sherwood 0 2 0 2 2 0 4 6 South of Kiehl from Summitt to Hwy 1 07 1544 1555 1572 1573 1575 1594 1595 0 5 0 0 0 0 1 4 0 4 0 0 0 0 New Manson Rd. area Geo-code 48 0 To Jacksonville area school To Sherwood Elem East of 67 /167 in Sherwood City Limits Geo Codes 3730 3758 1525 0106 Totals B 0 1 1 0 1 66 w 2 0 0 6 16 To Sherwood Elem North of Kiehl east of Summitt to Hwy. 67-167 Geo Codes 1528 1531 1562 1563 1564 1565 1566 1567 1568 Totals B 4 0 0 0 1 3 2 0 0 32 w 4 1 0 0 3 0 7 1 1 20 Revised Geo-code 15-36 to Clinton Gap Creek/Austin Lakes 2 0 To Oakbrooke Elem Total 2 - Transfers out of Harris Elem for 2002-2003 September 2002 lntradistrict Transfers Harris area Harris area east of Hwy 67/167 west of Hwy 67 /167 Sherwood Elem. 1 2 Sylvan Hills Elem. 1 3 Oakbrooke Elem. 0 1 Cato .Elem. 0 6 Clinton Elem. 1 Totals 3 18 Integrative Transfers Sherwood Elem. 4 22 Sylvan Hills Elem. 0 9 Oakbrooke Elem. 2 47 Cato Elem. 0 0 Clinton Elem 1 ~ Totals 7 81 Grand Total 10 99 EXHIBIT C Current Attendance Zones and Proposed Modifications EDWARD L. WRIGHT (1003-1077) ROBERTS . LINDSEY (1'113 - 1'191 ) ISAAC A. SCOTT , JR . JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F. COX, JR . TROY A. PRICE PATRICIA SIEVERS HARRIS JAMES M. MOODY. JR . KATHRYN A. PRYOR GORDON S. RATHER, JR. TERRY L. MATHEWS DAVID M. POWELL 200 WEST CAPITOL AVENUE SUITE 2300 ROGER A. GLASGOW LITTLE ROCK, ARKANSAS 72201-3699 C. DOUGLAS BUFORD , JR . PATRICK J, GOSS ALSTON JENNINGS , JR. JOHN R, TISDALE KATHLYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY Ill LEE J, MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T. COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER, JR . CHARLESL. SCHLUMBERGER WALTER E. MAY GREGORY T. JONES H. KEITH MORRISON BETTINA E. BROWNSTEIN WALTER Mc:SPAOOEN ROGER 0 . ROWE JOHN 0 . DAVIS JUOY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse (501 ) 371-0808 FAX (501) 376-9442 www .wlj.com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R. LINDSEY JAMES R. VAN DOVER Writer's Direct Dial No. 501-212-1273 mjones@wlj.com December 18, 2002 600 West Capitol Avenue, Suite 360 Little Rock, Arkansas 72201 J . MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL 0 . BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C. TAO BOHANNON KRISTI M. MOODY J, CHARLES DOUGHERTY\" M. SEAN HATCH J. ANDREW VINES JUSTIN T . ALLEN CHR ISTINE J. DAUGHERTY , Ph .D. MICHELLE M, KAEMMERLING ERIKA ROSS SCOTT ANDREW IRBY HOLLY A. ADEE MICHELLE HARGIS DILLARD PATRICK 0 . WILSON Licensed to praclice before the United States Patent and Trademark Office RECEIVED DEC 1 9 2002 OFFICE OF DESEGREGATION MONITORING Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: I enclose a courtesy copy of the PCSSD reply to Joshua's response to our Maumelle school site motion. The original has been filed and the parties served. Since I know that the Court will entertain precedents for orders, I enclose a proposed precedent for the Court's review. Thank you very much. Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP MSJ:ao Encl. cc/w/encl.: 6-~ 386128-v1 Honorable J. Thomas Ray All Counsel of Record IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED DEC 19 2002 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS PCSSD'S REPLY TO JOSHUA INTERVENOR$' RESPONSE TO MOTION REGARDING SITE SELECTION AT MAUMELLE AND FOR OTHER RELIEF The key provision of the Joshua response is the second sentence which states: \"Joshua does not opposed (sic) the site for it is in keeping with the provision of the revised desegregation plan.\" Accordingly, and because the acquisition and construction schedule could be compromised if a delay is too extensive, the PCSSD believes that an order should issue forthwith approving the site and reserving for future resolution the remaining issues raised by Joshua. The remaining issues, while important, should not hold hostage the simple matter of the site selected. For instance, Joshua professes to be concerned regarding racial balance, busing burdens and recruitment. The PCSSD went to considerable lengths in its motion to explain these issues. Its principal focus will be to recruit those elementary age children it has already recruited from Little Rock to Crystal Hill Elementary School. The same emphasis will be had at Pine Forrest and Oak Grove Elementary although their 383980-v1 numbers are much smaller. There is no reason to re-invent the wheel. The school will be desegregated if the PCSSD is even reasonably successful in recruiting AfricanAmerican children who have already volunteered to attend these elementary schools. As we explained in our motion, there will be no \"burden\" associated with transportation that does not already exist. The M to M students make a voluntary decision to transfer and volunteer to ride a bus from their neighborhood to these schools. The mere opening of a new middle school will not change this phenomenon. Further, it should be obvious that the PCSSD projections contained in the motion assume that the school will open at capacity. It will not. It will likely be several years before population growth takes it to capacity. Accordingly, by opening at substantially below its ultimate capacity, the numbers of minority students currently projected should result in an initial racial proportion that is far higher in minorities than that projected in the motion. The funding issue is more fundamental ; however, the state cannot simply unilaterally end funding, but would have to have the permission of this Court to do so. It is the position of the PCS SD that the 1989 settlement agreement contains no \"sunset\" provision regarding M to M funding and that it will therefore continue into perpetuity. Finally, the PCSSD seriously doubts that the ODM is preparing a \"report\". Be that as it may, the PCSSD has no reason to believe that the ODM will recommend against the site selected. Accordingly, as we noted at the outset, an order should issue forthwith approving the school site and reserving, if the Court desires to do so, any remaining issues for future resolution. 383980-v1 2 -- - -- - ---- Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 B _...,,....:::,__--'\u0026lt;------\":::.....,1=-'~-----nty Special CERTIFICATE OF SERVICE On December 18, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 383980-v1 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 M.Sa 3 - ---- - - - IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Pending before the Court is the PCSSD motion seeking approval of a middle school site to be constructed at the intersection of Murphy and Carnahan Drive in Maumelle, Arkansas. The motion is granted to this extent and the PCSSD is authorized to pursue purchase of the site and construction of the new middle school. Any and all other issues raised by any party as respects this matter are reserved for future disposition. 386131-v1 SO ORDERED this_ day of December, 2002. United States District Judge Wm. R. Wilson, Jr. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Pending before the Court is the PCSSD motion seeking approval of a middle school site to be constructed at the intersection of Murphy and Carnahan Drive in Maumelle, Arkansas. The motion is granted to this extent and the PCSSD is authorized to pursue purchase of the site and construction of the new middle school. Any and all other issues raised by any party as respects this matter are reserved for future disposition. 386131-v1 SO ORDERED this_ day of December, 2002. United States District Judge Wm. R. Wilson, Jr. AO 72A (Rev.8/82) IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 WRW/JTR PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, et al. MRS. LORENE JOSHUA, et al. KA THERINE KNIGHT, et al. RECEIVED DEC 2 3 2002 OFFICE OF DESEGREGATION MONITORING DEFENDANTS INTER VEN ORS INTER VEN ORS ORDER 1. Joshua lntervenors move to recuse me as the presiding Judge in this case under 28 U .S.C. 455(b )(2) and further ask me to vacate my Orders, rulings, and judgments in this case under Federal Rule of Civil Procedure 60(b)(6). See Motion for Recusal of District Judge and for Vacating of Orders, Rulings and Judgments ( docket no. 3 710). The recusal provision at issue reads, in pertinent part, as follows: (b) [Any judge, justice, or magistrate of the United States] shall also disqualify himself in the following circumstances: * * * (2) Where in private practice he served as lawyer in the matter in controversy ... . 1 Rule 60 on vacating Orders reads, in pertinent part, as follows: (b) On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final 128 U.S.C. 455(b)(2). A072A (Rev.8/82} 2. judgment, order, or proceeding for the following reasons: . . . ( 6) any other reason justifying relief from the operation of the judgment. 2 In my previous Orders,3 addressing Joshua Intervenors ' \"exploratory\" motions regarding recusal,4 I discussed most, if not all, of the points in Joshua Intervenors ' current recusal motion. Nonetheless, I will address those points again. 3. It appears to me that there are at least two dispositive answers to Joshua Intervenors' Motion for Recusal: a. My brief appearance, over a decade ago, as counsel for the Judge then presiding, the late Henry Woods, in a mandamus proceeding before the Eighth Circuit, touched neither the top nor bottom side of any of the issues that have been before me since I was assigned this case in January of this b. year. At the time I was assigned this case, Joshua Intervenors ' lead counsel knew or should have recalled my brief, isolated appearance 13 years ago, but posed no objection until after my September 13, 2002 decision on LRSD's Motion for an Immediate Declaration of Unitary Status. 2FED. R. C1v. P. 60(b)(6). 3See October 29, 2002 Drder Denying Motion for Hearing Regarding Relevance of 28 U.S.C. 455 to the Present Proceedings at docket no. 3695; November 12, 2002 Order Denying Motion for Extension of Time to File Notice of Appeal at docket no. 3701; November 12, 2002 Amended Order Denying Motion for Extension of Time to File Notice of Appeal at docket no. 3702; and November 12, 2002 Order at 3703. 4See Joshua's October 25, 2002 Motion for Hearing Regarding Relevance of 28 U.S.C. 455 to the Present Proceedings at docket no. 3693; and November 8, 2002 Motion for Extension of Time to File Notice of Appeal at docket no. 3700. -2- A072A (Rev.B/82) 4. In 1987, I represented Judge Woods before the Eighth Circuit in a mandamus proceeding initiated by LRSD, which sought to disqualify Judge Woods from presiding over this case. That mandamus action was a separate and distinct proceeding, involving separate and distinct issues, that were unrelated to the merits of the underlying school desegregation case. Thus, my brief role as Judge Woods' attorney in that long ago mandamus proceeding in no way constituted my serving as a lawyer \"in the matter in controversy,\" as that phrase is used in 28 U.S.C. 455(b)(2).5 Thus, I feel sure that 28 U.S .C. 455(b)(2) does not require my recusal. 5. Joshua Intervenors complain that, when I entered the case earlier this year, I failed to advise them of my long ago appearance on behalf of Judge Woods in that mandamus proceeding. They were not \"advised\" because they knew. Joshua lntervenors ' lead counsel, Mr. John Walker, was deeply immersed in this case in 1987, and has been continuously since then. After LRSD initiated the mandamus action against Judge Woods, Mr. Walker joined in seeking to have him removed from the case. This is reflected in the reported opinion,6 and is a matter of public knowledge. See Attachment A. 6. Mr. Walker avers that he forgot about my brief appearance in the case. The LRSD responds: The fact that counsel for Joshua \"forgot\" the Court's earlier representation ofJudge Woods perhaps provides the best evidence that the issues are unrelated. 7 51 also believe it is significant that, in representing Judge Woods, I was not acting as counsel for any of the parties in the underlying school desegregation case. 6See LRSD v. PCSSD, 839 F.2d 1296, 1301 (8th Cir. 1988). 7Memorandum Brief in Support of Plaintiffs Response to Motion for Recusal at 5. -3- AO 72A (Rev.8/82) Logic and common sense strongly support LRSD's argument. Furthermore, even accepting Joshua's counsel's statement that he forgot about my representation of Judge Woods, the Eighth Circuit has held that litigants \"choose counsel at their peril,\" and, therefore, the mistakes of counsel are imputed to litigants.8 In view of the certain knowledge of Joshua lntervenors' lead counsel of my involvement in the mandamus proceeding in 1987, it seems to me that the averred lack of knowledge on the part of his associate counsel is irrelevant. 7. In addition, Joshua 's Motion for Recusal is not timely. The Eighth Circuit has consistently required actions under 455(b) to be timely, and has subscribed to the view that \"motions to recuse should not 'be viewed as an additional arrow in the quiver of advocates in the face of . .. adverse rulings.\"'9 In affirming Judge Woods' decision not to disqualify, Judge Richard Arnold wrote: At the outset, we note the irony that most of the major parties to this litigation have at some point sought the removal of the trial judge. Not surprisingly, the parties have generally discovered grounds for disqualification at approximately the same time that the District Court has ruled for their adversaries on the merits. The recusal statute does not provide a vehicle for parties to shop among judges. 10 Mr. John Walker was counsel ofrecord for the Joshua Intervenors at their first appearance in this case back in 1984, and he has remained their counsel of record since that time. At the time ' 8See Inman v. American Home Furniture Placement, In c., 120 F.3d 117, 118-19 (8th Cir. 1997). 9 In re Kansas Public Employees Retirement System, 85 F.3d 1353 (8th Cir. 1996) (citation omitted). 10LRSD V. PCSSD, 839 F.2d 1296, 1302 (8th Cir. 1988). -4- AO 72A {Rev.8/82) I entered this case, Mr. Walker knew or certainly should have recalled that I had represented Judge Woods in the 1987 mandamus proceedings in which he joined with counsel for LRSD in seeking to disqualify Judge Woods from presiding over this case. Yet, only after an unfavorable result did Mr. Walker's memory become refreshed regarding my involvement in the 1987 mandamus proceeding, followed in short order by his decision to seek to have me recuse. The fact that Joshua's motion follows a ruling adverse to them renders the motion suspect as a litigation strategy. 11 The court \"cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge.\"12 8. In their Motion for Recusal, Joshua 's lawyers allege that I decided the merits of this case based on \"fealty and deference to Judge Henry Woods, the individual whose positions [I] was obligated to champion, when serving as an attorney in this case.\" 13 Joshua 's counsel seem to base this assertion on the following circumstances alleged in their motion: After the time that [I] represented Judge Woods in this case, Judge Woods expressed negative views on the fees for attorneys in the case, particularly the Joshua lntervenors .... In the opinion of September 13, 2002, [I] drew upon (at 43) and built upon (at 38-44) Judge Woods' conclusion about attorneys' fees, although recognizing that the matter was not directly relevant to the issue of unitary status ... (at 40). . . . It is reasonable to conclude that Judge Woods' views about attorneys' fees in this case had a greater influence on [me], after receiving assignment of 11 See United States v. Tucker, 82 F.3d 1423, 1425-26 (8th Cir. 1996). 121n re United Shoe Machine,y Co,p., 276 F.2d 77, 79 (1st Cir. 1960) (citation omitted). 13Motion for Recusal at 6. -5- AO 72A (Aev.8/82) this case, because [I] had earlier assumed an advocacy role for Judge Woods by representing him in this case. 14 My representation of Judge Woods in the mandamus action did not have even the slightest connection with the issue of attorneys' fees in this case. A reading of my September 13 Order in its entirety reveals that I criticize fees received by the entire professional group in this case, not just Joshua's counsel. 15 9. Regarding my employment of Janet Pulliam, 16 I fall in line with a recent decision of the Eleventh Circuit Court of Appeals. That Court, in Byrne v. Nez hat, 17 held that recusal was not required where a judge's law clerk had previously worked for a law firm representing one of the parties because the judge immediately isolated the law clerk from the case. Ms. Pulliam has been completely separated from this case at all times. She has not and will not have any connection with this case. 10. Finally, Joshua's counsel asserts that I \"held negative views about Mr. Walker's earlier role in this case\"18 and that I had \"an unfavorable image of [Mr. Walker] due to the court's 14Motion for Recusal at 5. 15lnterestingly, while this point appears to be lost on Joshua's counsel, they do concede that the concerns I expressed regarding the fees that have been paid to the professional group have nothing to do with the merits of LRSD 's Motion seeking unitary status. 16Joshua lntervenors have apparently abandoned this point because it is not raised in their Motion for Recusal. For the record, it should be noted that Ms. Pulliam began her employment with me several weeks after I entered my September 13, 2002 Memorandum Opinion ruling on LRSD's Motion for an Immediate Declaration of Unitary Stats. 17261 F.3d 1075 (] Ith Cir. 2001). 18See Joshua's Motion for Recusal at 6. -6- AO 72A (Rev.8/82) perception of his role regarding attorneys' fees. \" 19 Both of these purely speculative assertions are supported by no facts and are patently untrue. In my September 13, 2002 Memorandum Opinion (docket no. 3675), I expressly recognized that Mr. Walker \"has manned the barricades of civil rights litigation in Arkansas for over four decades and that he has a reputation for never yielding on matters of principle.\" Id. at 41. If at the time I entered that decision I held a \"negative\" or \"unfavorable\" image of Mr. Walker, as he alleges, I most certainly would not have paid him such a tribute. 11 . Joshua's Motion to Recuse is DENIED. Likewise, Joshua's request under Rule 60(b )(6) that I vacate my orders, rulings, and judgments in this case is DENIED since no valid reason justifying relief has been presented. ~ IT IS SO ORDERED this~O day of December, 2002. Wm. R. Wilson, Jr. UNITED ST ATES DISTRICT JUDGE THIS DOCUMl::1\\JT ENTEREO ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 ANC(!Q~~~:: ON !8'~-~y~ . ' 9See Joshua's Memorandum in Support of Motion for Recusal at 12. -7- JOHN W. WALKER SHAWN CHILDS Michael E. Gans, Clerk O. S. Court of Appeals JOHN W. WALKER, P.A. ATTORNEY AT LAW 1723 BROADWAY LITTLE ROCK, AR.KANSAS 72206 TELEPHONE (501) 374-3758 FA,'{ (501) 374-4187 December 22, 2002 111 South 10th Street - Room 24 . 329 St. Louis, MO 63102 Re : 02 - 3867 Little Rock School District v . Joshua Intervenors Dear Mr. Gans, OF COUNSEL ROBERT McHENRY. PA. DONNA J. McHENltY 8210 HENDERSON RO . .\\D LIITLE ROCK, ARK.-1.NS.\"8 72210 PHONE: (501) 372-3425 F.-\\X (501) 372-3428 ElvL-\\JL: mchenryd@swbell.net RECEIVED DEC 2 6 2002 OFFICE OF DESEGREGATION MONITORING This letter addresses several issues in connection with this appeal . Transcriots All t,ranscripts needed for this appeal had been prepared earlier for counsel's use in the District Court. Method of Preparation of Appendix The parties will submit separate appendices . Desianation of Record (Appellant) Joshua Intervenors ' designation is attached to this letter. Statement of Issues (Appellant) Joshua Intervenors' statement of i ssues is attached to this letter. cc Chris Heller (LRSD ) other counsel of record in the District Court Aoceal No . 02 - 3867 Little Rock School Dist. v. Joshua Intervenors Joshua Tntervenors ' Desianation of ~he Record (1 . ) docket entries :for the period f.::-om January 1, 1998 to date (2 . ) Exhibits 543 to 872 (e!'ld of list} (all exhibits are marked court exhibits) (3 . ) Pulaski County School Desegregation Case Settlement Agreement, March , 1989 (As Revised September 18, 1989) (4 . ) Joshua Opposition LO Little Rock Compliance Report , 6- 25 - 01 (5 . ) Order , 8- 20 - 01 ( 6 . ) Order 10-3 - 01 (7 . ) Response by LRSD, 10 - 5- 01 (8 . ) Order , 10-17-01 (item 3521) ( 9 . ) Ceder , 11-13-01 ( 10 . ) Order , 11-13 - 01 (1 1 . ) Order , 12 - 12 - 01 (12 . ) LRSD , Motion, Memorandum, and Statement of Facts Not in Dispute , 3- 15 - 02 (13 . ) Order, 5-7 - 02 (14 . ) Order , 5- 9- 02 ( 1 5 . ) Order , 5- 15- 02 ( 16 . ) Joshua Intervenors ' ( 1 7 . ) Order, 9- 12 - 02 ( 18 . ) Order, 10 - 11 - 02 ( 19 . ) Order, ll-12 - 02 Opposition, 5 - 30 - 02 (20 . ) t'1otice of Appeal, 11 - 12 - 02 (21 . ) transcripts Subst antive Hearinqs 7-5-01 7 - 6- 01 8-1 - 01 8-2 - 01 11-19-01 11-20- 01 7- 22 - 02 7 - 23--'02 7-24 - 02 Hearings on Procedural Matters 6- 29 - 01 7 - 9- 01 8 - 17 - 01 11-13- 01 12-11- 01 (22 . ) The Memorandum Opinion and Judgment, 9- 13- 02 and Order 10-11-02 Appeal No . 02-3867 Little Rock School Dist . v . Joshua Intervenors Joshua Intervenors' Desianation OT Tssues (1 . ) whether some of the District Court's findings of substantial compliance with the Revised Plan were induced by legal error in construing the Plan? (2 . ) whether the district court made clearly erroneous findings of fact regarding student discipline, steps to improve and remediate the academic achievement of African American students, participation in extracurricular activities and advanced and enriched courses, guidance and counseling services, and plan compliance ~t Central High School? ( 3 . ) whether the Revised Plan required that the LRSD show progress in eliminating the racial achievement gap in order to establish substantial compliance with the Plan? (4 . ) whether in the course of assessing the LRSD's compliance with the Revised Plan the District Court failed to employ monitor ing by the Office of Desegregation Monitoring (ODM) in the manner required by this Court in 1990? (5 . ) whether the District Court erred in holding the Joshua Intervenors to the requirement LDa~ they exhaust the Plan compliance remedies before they could contend thaL the LRSD did noL substantia~ly comply with a requirement of the Plan? ( 6 . ) whether the Distr~c~ Court er~ed in imposing an evidentiary burden on the Joshua Intervenors regarding Lhe Joshua monitoring activities prior to March 15, 2001? This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.\u003c/dcterms_description\u003e\n \n\n\u003c/dcterms_description\u003e \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n \n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n\u003c/item\u003e\n\u003c/items\u003e"},{"id":"bcas_bcmss0837_1753","title":"District Court, motion and denial for extension of time to file notice of appeal, Joshua intervenors' supplemental motion for extension of time to respond to Pulaski County Special School District's (PCSSD's) motion for approval of middle school site, other motions and PCSSD's response to motions by Joshua intervenors.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. 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Central Arkansas Library System"],"dc_relation":null,"dc_right":["http://rightsstatements.org/vocab/InC-EDU/1.0/"],"dcterms_is_part_of":["Office of Desegregation Monitoring records (BC.MSS.08.37)","History of Segregation and Integration of Arkansas's Educational System"],"dcterms_subject":["Little Rock (Ark.)--History--21st Century","Education--Arkansas","Little Rock School District","Pulaski County Special School District","School districts","Education--Evaluation","African Americans--Education","Middle schools","School employees","School integration"],"dcterms_title":["District Court, motion and denial for extension of time to file notice of appeal, Joshua intervenors' supplemental motion for extension of time to respond to Pulaski County Special School District's (PCSSD's) motion for approval of middle school site, other motions and PCSSD's response to motions by Joshua intervenors."],"dcterms_type":["Text"],"dcterms_provenance":["Butler Center for Arkansas Studies"],"edm_is_shown_by":null,"edm_is_shown_at":["http://arstudies.contentdm.oclc.org/cdm/ref/collection/bcmss0837/id/1753"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":["Available for use in research, teaching, and private study. Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["27 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eDistrict Court, order; District Court, motion for extension of time to file notice of appeal; District Court, order denying motion for extension of time to file notice of appeal; District Court, amended order denying motion for extension of time to file notice of appeal; District Court, order; District Court, notice of appeal; District Court, Joshua intervenors' supplemental motion for extension of time to respond to PCSSD's motion for approval of middle school site; District Court, Pulaski County Special School District's (PCSSD's) response and objection to Joshua intervenors' supplemental motion for extension of time to respond to Pulaski County Special School District's (PCSSD's) motion for approval of middle school site; District Court, two orders; District Court, motion for recusal of district judge and for vacating of orders, rulings, and judgments; District Court, the Joshua intervenors' memorandum in support of their motion for the vacating of orders and recusal; District Court, plaintiff's response to Joshua intervenors' motion for the vacating of orders and recusal; District Court, memorandum brief in support of plaintiff's response to Joshua intervenors' motion for the vacating of orders and recusal; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool This transcript was create using Optical Character Recognition (OCR) and may contain some errors. flE~1:IVED NOV - 4 2002 - OFACEOF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NOV O 1 2002 ~/ ~~E~~~,I LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER DEFENDANTS INTERVENORS INTER VEN ORS Yesterday, Joshua Intervenors filed a Motion for Extension of Time to Respond to PCSSD's Motion for Approval of Middle School Site. The motion reports that PCSSD's counsel does not object to the requested extension. Joshua's request is GRANTED. They have up to and including November 19, 2002, in which to file a response to PCSSD's motion. IT IS SO ORDERED this~ day of November, 2002. Wm.R. Wi UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WIT~ ~Uj.E 58 AND/OR79~~ ON / 11 lj:, \"h BY__,,,.,,..~-- 3699 t= u.f t~,.e:o EASTERN Dts~,21 COURT n:.,., T ,\u0026lt;\\Ri\u0026lt;AJ\\JSAs NOV O 8 2002 JAMES I~/ By v, iLfoCO!~~-vAc1, ~--~ \\ CLERK rn THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKAL\"\\JSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT PLArnTIFF V. CASE NO. 4:82CV00866 WRW/ PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED NOV 1.2 2002 OFACEOF DESEGREGATION MONITORING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL DEFENDANTS INTER VEN ORS INTER VEN ORS Come the Joshua Intervenors, by and through undersigned counsel, John W. Walker, P .A, and respectfully move the court for al?-_ extension of time for an additional thirty days in which to file Notice of Appeal to the final judgment entered herein on October 11 , 2002. For cause, Joshua respectfully states: 1. On October 25, 2002, the Joshua Intervenors filed a motion for hearing regarding the relevance of 28 U.S.C. 455 to the cunent proceeding. Therein, Joshua sought an evidentiary hearing in which to explore the relationship of the Court's previous role in this litigation to the current proceedings. The Joshua Intervenors sought the oppo11unity to develop a record regarding his honor's role in opposing recusal requests in this numbered case which were made by at least two of the parties regarding the late Honorable Henry L. Woods. 2. On October 29, 2002, the Court entered an Order \"denying\" the Joshua \"Motion for Hearing.\" Therein, the Comi inter alia indicated that it had \"represented\" Judge Woods \"approximately fifteen years ago ... .. \" in this mentioned case in co1mection with a mandamus petition by the Little Rock School Distiict and the Joshua Intervenors ( the latter represented by Mr. Walker among others). This Comi stated that \"the mandamus iss~es h-;;:d nothi~g-to- d; v~th the merits of the underlying case.\" 3. The Comi went on to say, as a finding of fact, that when the case was assigned to it that counsel John W. Walker \" ... lmew full well that, thirteen years earlier, I had represented Judge in the mandamus proceeding that Mr. Walker. himself. helped initiate.\" [ tmderlining represents the Court's emphasis] 4. The Comi later reemphasized the point that :tvfr. Walker was counsel of record for Joshua and one of the moving paiiies [the Court's emphasis] who filed the petition for wiit of mandamus. The Court went on to indicate that it would be willing to revisit the issue \"only if' the \"b1iefs\" the Court filed when in private practice differed from his \"clear recollection.\" .,:, The Court also noted other concerns that it would address upon receipt and review of the \"briefs\" which he filed in this case on behalf of Judge Woods. 5. The Joshua Intervenors have retrieved from the Eighth Circuit archives and attach herewith one of what the Court Order implies is several \"briefs\" which it filed when in private practice in this numbered case. The Joshua Intervenors have requested the 8th Circuit Court Clerk for the docket entries in connection with the appeals. In that way, the Court can ascertain with certainity if the Court filed additional briefs while in private practice in the case herein. 6. Joshua also notes that its counsel, contrary to the findings of fact in the Order of October 29, 2002, which findings were underlined for emphasis, did not file a petition for the 2 Writ of Mandamus regarding the Judge Wood's recusal. In the opinion of the Court of Appeals decision which the Court cites as its support for the emphasized proposition, the Court noted at footnote 6: \"The Joshua Intervenors raise this-argument in the form of an appeal from the DistJ.ict Comi' s denial of their motion for recusal. LRSD brings this argument through a petition for Mandamus directed to this Court seeking an Order directing recusal, a petition suppo1ied here by the Joshua Intervenors. [ underlining for emphasis] 7. The Joshua Intervenors intend to request that the Court review its attached brief prepared while in private practice in this numbered case-as well as any other brief which it prepared in this case for any pmpose- and to then reconsider the facts which it found sua sponte in its Order of October 29, 2002. 8. In the event that the Comi reconsiders its Order of October 29, 2002, the Court may be - inclined to, at least, modify its earlier order and to afford the requested relief which is set forth therein. It is clear_ that some of the Court's findings regarding its role when in private practice are inconsistent with the findings of the Court of Appeals regarding the same matter. 9. The Joshua Intervenors intend to file a motion for recusal in the event that the Court itself refuses to recuse after it has reviewed the attachments hereto. 10. Notice of appeal is to be filed herein not later than November 11, 2002. The Court may extend such ruling upon a showing of good cause. Rule 4(a)(5)(A), Fed. R. App. Pro. Joshua believes that good cause exists in that there are umesolved questions for the Court to address regarding recusal. Good cause also exits because piece-meal appeals may otherwise be avoided. 3 11. There is no prejudice to the Little Rock School District if the request to extend the. time for filing notice of appeal is granted. \\VHEREFORE, premises considered and in the interest of having related matters proceed concurrently and in the interest of justice, the Joshua Intervenors respectfully request that they be allowed up to and including December 11, 2002 in which to file their notice of appeal. 1 \u0026lt;7 ' I i / I ' ,/ J/ i . / ,'f;\" /9--1\\ 1) ' j i / te_-!ld/h'.t;;,.:.J. .. , Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respect~y sub1~tted, , ) / -~ ~i~i~L it/ /.i-tlig;ip- Jol:m .W. Walker, AR Bar No. 64046 JOHN w. w ALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 3 74-3758 (501) 37/187 (Fax) I .,. .- / I 0?1--- - _., ,/. r /,~-_ // ~.I.. ,\u0026gt;'\\ \\..._: I , .1{:'';.,, ,; ., ( .It\" ; Rickey Hicks, 11,R :Bar No. 89235 L . ) Attorney at aw~ :Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 4 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent v J a,-x and U.S. Mail, postage prepaid to the following counsel ofrecord, on this _j2 day of u,t,,9-,,,. , 2002: Nir. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 i...,: Nir. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building . Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 722 0 1-3 4 72 Mr. Richard Roachell ROA CHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 173 8 8 Little Rock, Arkansas 72222-7388 John w: Walker 5 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 87-2150 LITTLE ROCK SCHOOL DISTRICT, Appellant, vs. PULASKI COUNTY SPECIAL. SCHOOL DISTRICT NO. 1, et al. Appellees. IN RE: LITTLE ROCK SCH60L DISTRICT, PETITIONER Petition for Writ of Mandamus Directed To the United States District Court - for the Eastern District of Arkansas Honorab~e HENRY WOODS, Judge RESPONSE OF THE HONORABLE HENRY WOODS, UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, TO PETITION FOR WRIT OF MANDAMUS WM. R. WILSON, JR. Wilson, Engstrom, Corum \u0026amp; Dudley Post Offi9e Box 71 _ Little Rock, AR 72203 (501) 375-6453 Attorneys for Respondent STATEMENT OF THE CASE The Little Rock School District (LRSD) moved The Honorabl.e Henry Woods, United States District Judge for the Eastern District of Arkansas, to recuse himself on April 24, 1987. The Motion was denied on April 30, 1987. Almost four months after the Order denying recusal, the LRSD petitioned this Court for a Writ of Mandamus ordering Judge Woods to recuse. The LRSD bases its petition on newspaper clippings, a sua soonte show cause order, newspaper photographs of LRSD students and Judge Woods, the Judge's law clerk's trip to LRSD administrative offices to pick up a list of the names and school addresses o~ LRSD principals, alleged ~ parte co mmu n i cations , and a 1 et t e r from Ju d g e Woo d s to a for mer LRSD school board member. 1 ARGUMENT I. . THE LITTLE ROCK SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDAMUS MUST BE DENIED SINCE IT IS UNTIMELY. It is clear, beyond peradventure, that the issue raised by the Petition for Writ of Mandamus is \"keggy. 11 The district court entered its Order denying LRSD's Motion t o R e cu s e o n A p r i l 3 0 , l 9 8 7 , a n d i t w as n o t u n t i 1 A u gu s t 24, 1987, that LRSD filed the petition for a writ - - a delay of nearly four (4) months. This Circuit has held that an unsuccessful petitioner in a situation such as this can bring the question before the Court of Appeals by a Petition for a Writ of Mandamus. L i d d e.11 ~ B d . o f E d . o f C i t y o f ___~ L o u i s , 6 7 7 F . 2 d 6 2 6 (8th Cir . 1982). It is certain, however, that such a petition must be timely - - as it was not in the case a:t bar. I n co n s i de r i n g a n II a pp e a r a n c e of p a rt i a 1 i t y 11. i s s u e under Sec. 455(a), the 7th Circuit considered a petition which was filed several months after motions to recuse were denied . The Court held: .The Writ of Mandamus is the vehicle by which we may exercise our supervisory powers over the district courts with respect to Sec . 455(a).To require a timely pet.it ion. for a writ of mandamus for a sole remedy serves another important purpose: that\" of preventing injury to the public perception of the judicial system before it has a chance to occur. If a party is deprived of its substantial rights of a trial before an actually biased judge, the harm can be remedied (though not costlessly) by a new trial before an unbiased judge. But, the harm to the public's perception of the judicial system when a judge who appears to be biased proceeds in a case is much more difficult to correct. Prevention in such circumstances is clearly preferable to attempt to cure. Accordingly, we hold that when a judge denies a motion to disqualify himself under Sec. 455(a), the moving party's sole recourse is to apply to this court immediately for a Writ of Mandamus:' We, therefore shall not review Judge Warren's several denials of Balistrieri' s motions under Sec. 455(a) . (Emphasis supplied) . United States v. Balistrieri 779 F.2d 1191, 1205. (7th Cir . 1985). In U. S . v. Olds 426 F.2d 562 (3rd Cir. 1970), the district cou-rt granted a motion to modify and correct or vacate a sentence despite the fact that the motion was filed well beyond the 120 day limit set by Rule 35 of the Federal Rules of Criminal Procedure. Approximately three (3) months after the district court's order became effective , the Government petitioned the court of appeals for a writ of mandamus to compel the district judge to set aside his order modifying the sentence, The court declined to express an opinion on the propriety or legality of the questioned order, and denied the petition 11 because of the Government's unexcused tardiness in pursu_ing its challenge .n (426 F.2d at 565). The court held: ... There is no inflexible rule of timeliness and we hesitate to create any. Rather, the question in each case is whether und~r all the circum.stances the remedy was pursued with reasonable dispatch. While the appeal period is in no way controlling, we point out that Government appeals in criminal cases, when permitted, must be filed within thirty (30) days after the entry of the order appealed from . . I n .:th i s c a s e , th e G o v e r n m e n t waited nearly three (3) months before seeking relief in this. court. No excuse whatsoever has been suggested for its inaction . . . In sum, we hold that by waiting nearly three (3) months before seeking relief in this court, thus permitting a material change in the Olds 1 status, the Government did not proceed with reasonable dispatch under the circumstances. 426 F.2d at 565-566. Since Judge Woods entered his written order denying 4 !1 I I ! I I I ~--1 I I I I I I 11/ Ol / U2 .L2 : HI t '.U 314244.2405 Cli.W'.l'IJJlil\u0026lt;ll%, recusal of April 30 1987, a number of substantive orders were entered in this case. On May 8 1 1987, the court entered an order which severed the Clark case from the consolidated school desegregations. The Joshua Intervenors have appealed from that order . The court entered a nineteen - page order on May 13, 1987 dealing with teacher assignments. The LRSD has appealed that order. A May 22, 1987 order regarding student assignments has been appealed by LRSD. The Co1.,1rt 1s order of May 26 regarding the assignment of ma~net teachers has been appealed by the Joshua Intervenors. The Joshua Intervenors have also appealed a June 16, 1 .9.87 order modifying the per pupil expenditure for magnet ... students. The Knight Intervenors have appealed the court's Ju l y 7, 1987 order clarifying the role of the Magnet Review Committee, and the July 8 order which permitted the Pulaski County Special School , District to recall black teachers affirmatively, so as to retain an acceptable level of black staff. No party has appealed the court 1s order of July 21, but that order authorized PCSSD to acquire the Ti mex f a cility and convert it into an elementary school. That co n version hes taken Judge Woods denied the motion to recuse orally on !pril 29 7 1987. place_ and the 11Daisy Bates Elementary 11 School is now operating. A July 27, 1987 order amended NLRSD's plan in order to deal with possible segregative effects of Arkansas Act 624 of 1 9 8 7 . 0 n A u gu s t 3 , 1 9 8 7 th e co u rt e n t e r e d a n or ct e r directing LRSD to show cause why it should not be held in contempt. LRSD was held to be in civil contempt by order dated August 7, 1987. LRSD has appealed that order. It was not until August 24, 1987, shortly after LRSD had been held in contempt, that it felt moved to seek this writ. In fine, at least thirteen 03) orders which , subs t 'a n ti a 11 y affected the part i es i n this case were entered in the four months between the order denying recusal and LRSD ' s petition for writ of mandamus . Further, at least eleven appeals have been taken in that time . In dealing with a delay of this nature , the 1st Circuit, in In~ United Sho~ Machinery Corporation, 276 F.2d 77 (1st Cir. 1960) quoted with app r oval the following language : 6 7 A litigant cannot experiment with a judge presiding over the case. We cannot permi.t .. a lit.igant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with h.is toe, and if found to his liking, decides to take a plunge . (276 F . 2d at 79). ----- It is apparent that petitioners filed this petition for a writ only after being stung by the contempt order of August 7, 1987 (while they were flush with victory in virtually every area of this litigation). The Petition was nowise timely and should be dimissed out of hand to prevent manifest injustice. II. LRSD'S \"EVIDENCEJ OF THE APPEARANCE OF LACK OF IMPARTIALITY IS LEGALLY INSUFFICIENT TO REQUIRE RECUSAL LRSD has characterized its faculty assignmentsand c on t r a ct re g a rd i n g th .o s e as s i g n me n ts as II ma n a g e me n t prerogative . 11 (LRSD Petition for Writ paragraph 2) . Judge Woods considered the faculty assignmens to be an integral p a r t o f t h e s t u d e n t a s s i g n m e n t a s p e c t o f t h e L R S D Desegration Plan . LRSD's discontent with Judge Woods is that he has noticed sua sponte its patent, notorious deviations from court approved desegregation plan. The Judge has insisted that all par~1es comply with court approved desegregation plans. (March 27 hearing p. 14). This Court has recognized the history of noncompliance with desegregation plans and court orders in school desegregation cases in Pulaski County, Arkansas. Little Rock School District v . Pulaski County Special School District, 778 F.2d 404, 422 (8th Cir. 1985) ( 11NLRSD has failed to comply fully with desegregation orders of the district court .. . and this Court. \" ) Id. at 420. ( 11The district court found that PCSSD had failed to comply with [Judge Henley's] decree and noted that, at trial, many PCSSD Board of Education members were not even aware of the contents of the decree.tr) Tbis was crystal\\ clear to LRSD. In the Court's letter/order of March 20, 1987, Judge Woods said: . However, I am determined that the plan which I approved will be carried out. If a delay is necessary, I want you to come to me- and discuss the reasons why that is so. I am of the opinion that the plan can be put into effect if the measures which I stated above are taken . . All of these district plans are to be carried out and carried out in an effective manner, and I hope I have made this clear. If we cannot implement these plan~ in a way to insure quality schools, then I want them delayed until we can implement them correctly. Some of the problems that we have encountered in these three districts have resulted from not carrying out orders of the court. Zinna mon is a case in p oint . I a m determined that my orders be carried out or the court b~ given a sufficient -reason why they cannot be carried out without being modif i ed. No one h as asked to modify the pLan which you submitted and I approved, and I expect that it will be fully and carefully complied i~ith in every detail . The student assignment segment of the LRSD Desegregation Plan (Plan) approved by the Court contains two primary components : (1) an initial assignment for each stude.nt and (2) an optional 11controlled choice \" component by which students who were unhappy with their i nitial assignments could request alternate assignments. The alternate requests were to be \"controlled \" or constrained by the requirements availability. of racial balance and the space On February 27, 1987, the district court approved the 11 broad outli n e \" of L RSD's student assignme n t plan . The initial assignments were to be made based on only two factors, \" racial equity and mi ni mal busing . 11 (Plan p: 13) . By contrast, the \"controlled choice 11 component of the Plan was quite specific: \"After parents have been notified of the schools to which their children have been assigned, '. they will have a period of one month\" in which to make an alternate choice. (Plan at 13) . \"Parent s w i lJ. be a ct i v e 1 y encouraged to visit . schools before making their selections \" (Plan at 12). (Emphasis theirs). \"School visits will be arranged during and after school hours. 11 (Plan at 12). 11Parents will have direct access to teachers and principals in all schools. 11 (Plan at 12) . 11 At 1 e as t t w o w eeks p r i or t o the re gist rat i on period , ea ch school will conduct parent information meetings in the schools. \" (P.lan at 12). By the explicit language of the Plan, the choice component was meant to be not only \" contr,olled, 11 but \"infor:'med .\" Initial assignments were sent home with school children on Wednesday, March 18th . Parents were jnstructed that alternate choices would have to be returned to LRSD's administrative offices by Apr.il 1, 1987, thirteen days later . Those thirteen (13) days included two weekends, a teacher work day and a week of spring breik during which all schools were closed. Parents were effectively given three (3) days to visit and - - - - - - - --- --- ------------ - ~ Court specifically ordered LRSD to nmake as little change as possible in the present staffing .. 11 (Petitioner's Exhibit No. 3, p.2) . A conference was held on March 27, 1987 at the request of LRSD . The Court repeated its concern that LRSD had unilaterally short-circuited vital components of its Plan by shortening the time and by failing to have staff in place. Counsel for LRSD, in an effort to persuade the Court to permit the shortening of the time, represented to the Court that parents could visit with staff even if the time were shortened since the district was in 11the final phases of assigning staff. 11 (M.i;irch 27th hearing at p . 8). Counsel . 1_: for LR SD v o 1 u n teer e d that staff assign men ts co u 1 d be completed within \"seven !_Q ten days 11 (March 27th hearing at p. 8). This assertion was not made in answer to a question by the Court, but rather was announced early in the hearing. Yet, LRSD now contends, 11In an unprecedented action, the district court sua sponte ordered LRSD to re - assign its faculty within ten (10) days (Petitioner ' s Brief, p . ix . ) . \"Whoso diggeth a pit shall fall therein. 11 (Proverbs 26 : 27 l - At the March 27th hearing, counsel for LRSD made this flat - footed statement: nThere are not going to be major changes in staff at any secondary school, even at any elementary school. 11 (March 27th hearing, p. 10). At this 2 time, the court did not know, though presumably counsel for LRSD did know, that LRSD and its teachers' union, Little Rock Classroom Teachers Association (LRCTA), had consummated a \"supplemental agreement 11 to the Professional Negotiations Agreement (PNA) which was before the Court . This supplemental agreement, though not before the Court, differed materially from the LRSD desegregation 3 plan approved by the Court . Nonetheless, teacher assignments were made on April 10th in conformity with that supplemental agreement . By terms of the supplemental agreement, a _hypothetical \"model faculty\" was con..structed by computing the district aver~ges of the 1986~87 LRSD teacher pool for the following factors : (1) gender (2) education (3) experience (4) age and (5) race. By the terms of the 2 3 The first inkling the court had of the existence of this supplemental agreement was whe n it was attached to LRSD's April 22 Recusal Motion. At the April 27th hearing, LRSD contended that its Plan had always included the five factors l i sted above . LRSD's expert told the Court that 11 i n telligent people 71 would have understood that t):1e Pla,n included these constraints . (April 29 hearing, p . 255) . This agreement (which LRSD now contends was made nimmediately \" after July, 1986 (Petition p . 2)) was actually consu mm ated on March 5, 1987 . supplemental agree~ent, assignments macte for 1987 - 88 were required to mirror would tolerate but 1986 - 87 LRSD staff demographics and a s i x ( 6 ) /p e r c e n t de vi at i on f r o m th e average. This, ,in spite of the fact that LRSD knew it woufd add fourteen annexed schools and se~en thousand students in 1987- 88 . Anyone with rudimentary knowledge of this case could plainly see that balancing .five factors to within six percentage points of the exact average would require tremendous shifts in existing faculty. It had been clear since November, 1986, that LRSD would gain 7,000 new students (over 35% of its 1986-87 student population ) , w h i ch , w o u 1 d o b v i o u s 1 y '.' i n v o 1 v e h i r i n g ma ri y new fa cu l t y members. It is hard to understand why LRSD counsel, aware of the agreement, assured the Court on March 27th that there would \"not be major [staff] changes 11 (March 27th hearing, p . 10). As noted, the Court had no knowledge that this \"modeP would be used until April 20th. But simple logic reveals s er i o u s fl a.w s in the rn ode 1. F or e x a mp le , L RS D con ceded that the vast majority of elementary teachers in 1986- 87 were female. (April 29 hearing, p. 232). Yet, the 11model1' e. would freeze as \"ideal\" the 1986 - 87 ratio of . male to female teachers! This is not, however, a lawsuit concerning gender. It does concern race. The Plan approved by the district court states: \"The reorganized Little Rock School District should be staffed disegregatively accor ding to two policy guidelines: (1) 11staff ratios will comply with the Order of the Eighth Circuit Court of Appeals, which allows a deviation of one - fourth of the remedial guideline,\" and (2) \"black staff will comprise at least one-half (1 / 2) of all personnel in each position or job description. \" (Plan at p . 16, 17). The Plan furthe r states: \"The timetable fully to implement the staffing re medial policy guideline is five years. 11 (Plan ,at 17). It was a material change in the Plan for LRSD to agree to add four factors to the race issue; it was a material change to agree to a six percent deviation in the racial ratio rather than the Plan's 25%; it was a mater i al change to shorten the five year implementat i on to one year. LRSD complains that the Court noticed the massive teacher reassignments sua ~E...!:.~ (Petition, p. 3, .para graph l O) and further complains that the Court improperly concluded that LRSD had violated previous Orders . The L RS D a d m i t t e d by letter d at e d March 25, 1987 (Petitioner's Exhibit PX-5) and in open Court that it had changed the Plan without prior court a pp r Q v a t Cl e.a.r-1-:f-i-6-R-.D---a-1-m--.:i:-t--1;-e-1- \\r:i:-er-l1-,a..+L +i-nn\"\"g,.......,p'\"'r-.e~v .,i .. ,,,o;rQisc\" C\"'\"'.o;:;u;-;-;::r+=t_ ____ i orders. The LRSD cites not a single case to support its I position that a federal district court mus~ sit idly by while a school district notoriously violates court desegregation orders (and wait for some party to invite the Court to enforce its orders). In Busch Y...:._ Sea World.[ Qhio, 95 F . R.D. 336 (W.D . Pa. 1982) the Court took judicial notice that a certain corporation had begun an advertising blitz via newspapers, radio and television. The Court, in Barnes v. Bosley, 568 F. S-upp-. 14'Oo (E'.D. Mo. 1983), took judicial notice that the Democratic party was firmly in control of political .~ o f f i c ~ s i n S t . L o u i s . L i k. e w i s e , J u d g e D a vi es n o t i c e d sua sponte the actions of then-governor Orval Faubus. See Faubus v. United States 254 F . 2d 797 (8th Cir . 1958). 4 LRSD Ex. PX-9 is a letter from Judge Woods to .. Ruth Shepherd, an immediate past LRSD board member. LRSD contends that this indicates the judge 1s \"prejudgment \" of issues to be presented at the April 29th show cause hearing. As is apparent 1 on April 1, 1987, the date of the letter, staff assign men ts had not been made; no show cause Order had been issued. The Court had no reason to disbelieve LRSD counsel when he assured the Court four d a y s e a r 1 i e r th at th er e w o u 1 d b e n o ma j o r s t a f f ch-a n g e s . The language concerning disregard of the Plan in virtually e Ve r y d e t a i l i s an O b Vi Ou s r e f e re n C e- t O th e f a i 1 u re Of LRSD to carry out the features of controlled choice contained in the Plan . The Court had no way to know that as that letter was being written~ LRSD. was actively viO'\"lat rng the cfirecfioffsot he .March 27th Order. .,. I I I I I I I I I I I i I I I I I ' \".\"' ~ Recalcitrant . school districts throughout this Circuit would delight in a holding th~t desegregation orders can be bol d-ly --arrd--p,:rb-1-rci.y-\u0026amp;e\"fIT~so J'. on g as no pa r-t y has the temerity or motivation to file a formal pleading. Multiple exhibits extracted from two local papers have be e n at t a ch e d t o th e L .RS D P et i t i on t o sup p o r t th. e proposition that a reasonable person would conclude that the appearance of impartiality had been lost through ex parte communications . To the contrary, the exhibits demonstrate only that the Petitioner's allegations are without basis in fact. Of the twenty-two articles submitted, five made no reference whatsoever to Judge I Woods. The remaining articles chronicle the reactions - of various groups and in~ividuals to orders issued by the Judge. In not one of the submitted articles does there appear an ex parte -comment attributable to the Judg7_ which go to the merits of any pending issue. Two newspaper photographs depict Judge Woods with students ironically LRSD students, not students from NLRSD or PCSSD. These photographs hardly create the appearance of bias against LRSD . Two articles refer to statements made by an unnamed spokesman for Judge Woods. Surely these triple hearsay statements (the newspaper reporter said that the unknown source said that the Judge said) cannot be considered as credible evidence justifying the disquali~iG-act--i-G-H- --Of-- a- - ~g- . -- --- LRSD cites Price Brothers Co.~ Philadelphia Gear Corporation, 629 F.2d 444 (6th Cir. 1989) for the proposition that a Judge's sending his law clerk to gathe~ evidence is destructive to the appearance of impartiality. In Price Brothers, the Circuit Court remanded the case for an evidentiary hearing. In the appeal of the proceedings after remand, the Sixth Circuit found that the law clerk's trip from the Southern District of Ohio to New York to observe the machines in the Plaintiff's factory did not ~ w-arranf r eversal. Price Brothers Co. ~ Philadelphia Gear .fS'...:.., 6 4 9 F . 2 d 4 1 6 ( 6 t,_ h C i r. 1 9 8 l ) . .:t The law clerk's viewing of the machine to help the Judge better understand how the machine worked was not considered as \"evidence\" in the case. Similarly obtaining a current list of principals in the LRSD was hardly 11evidence 11 in this case. The names and school addresses of the LRSD principals has never been in dispute. It is absurd to consider the picking up of an undisputed list of names and addresses as ngathering evidence. 11 Additionally, the Sixth Circuit in both Price Brothers opinions indicated that consent, even implied consent, to the law clerk's participation would be a factor in considering their later objection to the law clerk's action. By ER-S-B~ LRSD administrative offices (where at least two LRSD attorneys were present) and was told by the ~ecretary (after checking) that a list of principals was available . LRSD would also have Judge Woods recuse because delegations of LRSD students arrived unannounced at his office to present a petition complaining of LRSD's violations of its Plan. If such an incident requires recusal, then any party who wishes to go \"judge shopping 11 need merely show up at a judge's office with a photographer and a petition . . ., III. IT IS NOT IN THE INTEREST OF THE ~ARTIES OR THE PUBLIC TO REQUIRE JUDGE WOODS TO RECUSE Notably, the L RSD seeks Judge Woods' recus a 1 lfas ed on .. 28 U.S . C. Sec. 455(a) which concerns the appearance of partiality rather than actual bias. In truth and in fact, LRSD has been the beneficiary of virtually all of Judge Woods' rulings over the five years of litigation in this school desegregation case. As Petitioner notes, Sec. 455(a) is primarily intended 1 q , I to insure public confidence in the impartiali.ty of the judicial process, not to protect litigants from actual Court of Appeals recently held that in a Sec. 455(a) rec u s al action, abs en t ..!:_~~ of person~ 1 bias , the reviewing Court should consider, inter alia, whether re-'-assignment to a dif_'_ferent judge would entail a waste and duplication out of proportion to the gain in preserving the appearance of fairness. Cinton v. Union Pacific R a i 1 r o a d f.2.:_, 813 F. 2 d 9 1 7 , 9 21 ( 9 t h C i r . 1 9 8 7 ) . This lawsuit now embodies well over nine hundred pleadings. It is difficult to imagine a more vivid illustration of d { spr~portionate waste and duplication involved in reassigning this case~~ this stage of the game. But more :~ i mp o ; t a n t 1 y , th e p u b 1 fc mu s t be a s s u r e ct th at ea ch p a r t y will abide by court orders, regardless of its status as 11pla int iff\" or \"defendant. 11 IV. CONCLUSION The district court correctly summed up the LRSD attitude in his April 30th Order when he noted: .LRSD's Motion to Recuse represents a time-worn tactic in sports contests and trials. When the umpire or judge calls you for a flagrant violation of the rules, your response is not to offer a defense for your conduct but to attack tlre, nrrvrre- oi'\"\"'ttre\"-j'trd~g, . . . . WHEREFORE, Respondent respectfully requests that the LRSD Petition for Writ of Mandamus be summarily denied. RESPECTFULLY SUBMITTED, WILSON, ENGSTROM, CORUM \u0026amp; DUDLEY P. 0. Box 71 Little Rock, AR 72201 (501) 375-6453 Attorneys for Respondent .. . '.,(, CERTIFICATE OF SERVICE A copy of the foregoing Response to Little Rock School District's Petition for Writ of Mandamus has been sent via Federal Express to all attorneys listed be-low whose mailing address is other than Little Rock, AR, and has been delivered by hand to all attorneys in Little Rock, AR on this 21st day of September, 1987 to : Philip E. Kaplan, Esquire 415 Main Street Little Rock, AR 72201 P. A. Hollingsworth, Esquire 415 Main Street Little Rock, AR 72201 Janet L. Pulliam, Esquire One Spri._nP- S~r~~-t,_ .Znd Floor Little Rock, AR 72201 Randy McNair, Esquire 201 E. Markham Little Rock, AR 72201 Richard -W .- Roa-eh-e-H,-E-squ-re-~- - ----~------------- -Post Office Box 1510 Little Rock, AR 72203 Theodore Shaw, Esquire NAACP Legal Defense Fund 99 Hudson Street, 16th Floor New York, New York 10013 Robert C. Lowry, Esquire 905 Boyle Building Little Rock, AR 72201 John W. Walker, Esquire. 1723 Broadway Little Rock, AR 72206 M. Samuel Jones, III., Esquire 2200 Worthen Bank Building LJttJe _fioc_k,. AB 7_2201 Philip K. Lyon, Esquire Stephen W. Jones, Esqu~re 3400 Capitol Tower -~ Capitol at Broadway Little Rock, AR 72201 Phil Neal, Esquire 208 South LaSalle Street Chicago, Illinois 60604 William H. Trice, Esquire 211 Spring Street Little Rock, AR 72201 Robert Cabe, Esquire 1615 Worthen Bank Building Little Rock, AR 72201 Hillary Clinton, Esquire Rose Law Firm 120 East 4th Street Little Rock, AR 72201 -. i .., I 7 I I ! 7 ! ~7- 7 j ,, Lazar Palnick, Esquire 1723 Broadway Little Rock, AR 72206 John --M .- -El-i..J.l:w.J:.-me-F-, - ~1.1-i P.e --- -c/ o Ketron, Inc. 1700 North Moore Street Ste. Arlington, Virginia 22209 David Flynn, Esquire 1710 Civil Rights Division Room 5740 Department of Justice Washingtbn, D.C. 20530 Carl R. Brents, Clerk U. S. District Court Post Office . Box 869 Little Rock, AR 72203 Sharon Streett Department of Education 304A Arch Ford Education State Capitol Mall Little _R_ock, _ Ajl l2~01 Building .... : ... ,,.. SUMMARY AND REQUEST FOR ORAL ARGUMENT As Petitioner has noted, the Motion to Recuse is --- ------ ---------~----------........ - - - -- purportedly ~ottomed upon statements and actions taken by the district court in response to LRSD ' s faculty assignment plan. Petitioner has requested oral argument and Respondent will be pleased to have this issue argued orally. At the same time, however, Respondent urges the Court to consider this specific issue (recusal) in an expedited manner. Otherwise, thousands of students will be attending school under plans that are clouded by this issue. This issue can be argued in fifteen minutes per side. TABLE OF CONTENTS SUMM-A-RY AN{) R-EQ+J-E-S'f-~H\u0026gt;,R G-R-Ab -A-RGlJ.M-E-N..'f .. ,-,--------- -----TABL E OF CONTENTS .. TABLE OF AUTHORITIES. STATEMENT OF ISSUES . STATEMENT OF THE CASE ARGUMENTS I. THE LITTLE ROCK SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDAMUS MUST BE DENIED AS ii iii iv-v 1 UNTIMELY . . . . . . . . . . . . . . . . . 2 II. LRSD I S \"EVIDENCE 11 OF THE APPEARANCE OF LACK OF IMPARTIALITY IS LEGALLY INSUFFICIENT TO REQUIRE RECUSAL . . . . . . . . . . . . . 7 - - -- ~. III. IT IS NOT IN THE INTEREST OF THE PARTIES OR THE PULIC TO REQUIRE JUDGE WOODS TO RECUSE .. . . . . . . . . . . . . . . . 19 CONCLUSION ADDENDUM i i .... .. 20 TABLE OF AUTHORITIES CASES: Barnes v. Bosley r- . 5.6.K. E .. S.U.p.p Mo. 1983) ... .. .. Busch v . Sea World of Ohio, 95 F . R.D. 336 (W.D . Pa.1982) . . . . . . . .... Cinton v . Union Pacific Railroad Company, 813 F.2d917 (9th Cir . 1987) .. .. . Faubus v. United States, 254 F. 2d 797 (8th Cir . 1958) . ... .. . . .. . lE_ Re United Show Machinery Corporation, 276 F . 2d 77 (1st Cir. 1960) ... .. . . Liddell v . Board of Education of City of St. Louis'; 677 F . 2d 676 (8th Cir . 1982J. Little Rock School District v . Pulaski County Special School District, 778 F . 2d 404 (8t fi Cir . 19-8\"5Y . . . ... . .. . .. . 16 16 20 16 6, 7 2 8 Price Brothers Co.~ Philadelphia Gear Corp . ~ 629 F.2d 444 (6t'.b Cir . 1980) . . . 18 v,,. Price Brothers Co . v . Phi l adelphia Gear Corp., 6 4 9 F . 2 d 416 ( 6~ C i r . 19 81 ) . . . -. - .- . . . . 1 8 United States v . Balistrier i, 779 F . 2d 1191 (7th Cir.1985) . . . . . . . 2, 3, 20 United States v . Olds, 426 F . 2d 562 (3rd Ci r . 1970) .. -. -. - .-. . . . . . . . STATUTES 28 U. S . C. Sec .. 455(a) ..... . ...... . passim i i i STATEMENT OF ISSUES I. Whether Petitioner's failure either to appeal the April 30th Order denying the recusal motion or to petition this Court for a Writ of Mandamus for almost four months bars this application for mandamus relief. In Re United Show Machinery Corporation, 276F.2\u0026lt;;! 77 (1st Cir. 1960) United States v . Balistrieri, 779 F.2d 1191 (7th Cir. 1985) United States~ Olds, 426 F.2d 562 (3rd Cir. 1970) II. Whether the district court judge abused his discretion --by -flndi ng that a reasonable per~on knowing all the pertinent facts would believe that Judge Woods could n o t b e i mp a rt i a 1 t o th e\" L i t t 1 e R o ck S ch o o 1 D i s t r i ct w h e n the 11 evidence\" consists of: a. Newspaper clippings covering publicity surrounding the Judge's Orders; b. Newspaper photographs of the Judge pictured with LRSD students; c. A responsive letter to a former member of LRSD Board of Directors from i V the Judge; d. A trip to LRSD administrative LRSD principals for the 1987- 88 school year; e. Non - specific allegations of ex ~~!~ telephone conversations, unsupported by specific dates, times, or people or by affidavits . Barnes v. Bosley, 568 F.Supp. 1406 (E.D. Mo . 1983T Busch v . Sea World of Ohio, 95 F.R . D. -336 (.W.-D- . .e.a _ .198.2) -- - -- Faubus v. United States, 254 F .2d 797 (8th Cir. -1958) ,,., : ~ Price Brothers Co. v . Phi l adelphia Gear Corp . , 649 F . 2d 416 (6th Cir. 1981) III. Whether it is in the interest of the parties or the public to require Judge Woods to recuse absent proof of actual bias . Cinton v. Union Pacific Railroad Co., 813 F . 2d 917(9th Cir . 1987) - United States v . Balistrie r i, 779 F. 2d 1191 (7th Cir. 1985 V IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS. 4:82CV00866 WR W/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al ~RS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al RECEIVED NOV 1 3 2002 OFFICE OF DESEGREGATION MONITORJNG DEFENDANTS INTER VEN ORS INTER VEN ORS ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL This case has been tried and decided, and all parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the request for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, I will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. IT IS SO ORDERED this 12th day ofNovember, 2002. w~t!f () \u0026lt;-- K lfll~111if' m. R. Wilson, r. UNITED STATES DISTRICT JUDGE L 7 0 1 IN THE UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al -MRS. LORENE JOSHUA, et al KA THERINE KNIGIIT, et al DEFENDANTS INTERVENORS INTERVENORS ORDER DENYING MOTION FOR EXTENSION Olf TIME TO FILE NOTICE OF APPEAL This case has been tried and decided, an.d aH parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the - indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the tequest for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, l will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. fT rs SO ORDERED this llt!.1 day of November, 2002. w.~ !L({ZPh111tr- UNITED ST ATES DISTRICT JUDGE TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OP ARKANSAS Telephone 501-604-5140 Fax Number 501-604-5149 Chris Heller \u0026amp; Clay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennis Hanson Ann MAl'shall 376-2147 376-9442 375-1027 663-6939 374-4187 682-2591 371-0100 There are Z.., pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Office of Judge U.S. District Court 600 West Capitol, Room 413 Little Rock, A.-kansas 72201 Christy Conrad, LRSD Law Clerk 604-5143 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS . 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al RECEIVED NOV 1 3 2002 QFflCEOF DESEGREGATION MONITORING 1..,_v 1r, yyppa r,u ,,-1 IV ,.....,;\u0026lt;, u.s~ilkf.FcQRT EASTERN DISTRICT ARKANSAS NOV 1 2 2002 ~~MES~~Ep ? PLAINTri?~P. CL~ DEFENDANTS INTER VEN ORS INTER VEN ORS AMENDED ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL This case, as it relates to LRSD, has been tried and decided, and all parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the request for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, I will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. IT IS SO ORDERED this 12thday ofNov, e,._20-m=.0'-2-.- b-e_-r-_-------- THIS DOCUMENT ENTERLJ ON Wm. R. Wilson, Jr. DOCKET SHEET iN COMPLIANCE UNITED STATES DISTRICT JUDGE WITJi RULE 58 AND/OR~R7C9P (a ON lf-/;....,o,_-BY ~?'7\"\"---\"-'-'=-== DiLLWiLSON JUDGE UNiTEO STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS IKIIJ W. CAPITOL, HOOM 423 LITfl.E ROCK, ARKANSAS 7220i-332$ \\~U I J tJiU4-:t l 'tU Fii.:slmlle (GOf) \u0026amp;G45146 -l\\lf-'lm....=...\u0026gt;....,...... ..hAr 10 ')()()\"') _...,~ .... -, ---- BYP'AX Mr. Chris Heller \u0026amp; Mr. Clay Fendley Mr. Sam Jones 376-2147 376-9442 Mr. Richard Roachell Mr. John Walker Mr. Dennis Hanson Ms. Ann Marshall \".\u0026gt;'7C: 1 f'l/')'7 ..J t ._J-.LU..GI 663-6939 374-4187 682-2591 371-0100 RE: Littie Rock t\u0026gt;chool District v. Pulaski County Special School District, et al., 4:82CV00866 WRW /JTR Enclosed is a copy cf an Order ,.;vhich amends the Order I entered earlier toda:f in which I denied Joshua's Motion for Extension of Time to File Notice of Appeai. The first sentence of the Amended Order is simply to narrow the scope of the Order-- since we are considering LRSD, a..1'1.d not the othe:r school districts . cc: The Honorable J . Thomas Ray Original to the Clerk \\ 1/m. R. \\1Jilson, Jr. TO: F.A_X COVER SHEET ONITED STATES DISTRICT COURT EASTEPJV DISTPJCT OF ARKA.lfSAS Telephone 501-604-5140 Fax Number 501-604-5149 Chris Heller \u0026amp; Cfay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennis Hanson Ann Marshall 376-2147 376-9442 375-1027 663-6939 374-4187 682~259} 371-0H!O DATE: NotJQ..vv\\htlf ! 7-, zooz_ There 2re 3=, pages, including this Co...-er Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Office of U.S. District Court 600 West Capito!, Room 423 Little Rock, Arkansas i2201 Christy Conrad, LRSD Law Clerk _604-5143 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, VS. * * * * 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., * Defendants, * * MRS. LORENE JOSHUA, et al., * Intervenors, * * KATHERINE KNIGHT, et al., * Intervenors, * ORDER FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS NOV 1 2 2002 In Joshua's Motion for Extension of Time to file notice of appeal, filed on November 8, 2002, they object to the statement in my order of October 29, 2002 in which I state that Mr. Walker helped to initiate the mandamus proceeding (against Judge Woods). Technically, Joshua is correct. On a review of the record, it appears that Mr. Walker did not proceed via mandamus, but, instead, Joshua directly appealed Judge Woods' denial of Joshua's motion for him to recuse. Joshua's position, in this regard, clearly elevates form over substance. Regardless of how it was styled, Joshua was seeking the identical relief sought by LRSD back at that time-- the removal of Judge Woods from the case. I quote again from the Eighth Circuit's opinion: We tum now to the arguments made by LRSD and the Joshua Intervenors that the District Court should have granted their motion for recusal. See LRSD v. PCSSD, 839 F.2d at 1301. There is an eloquent silence in Joshua's most recent motion -- it does not address the issue of waiver and estoppel. The point here is that Joshua's counsel knew to a lead pipe certainty of my -2- representation of Judge Woods in the mandamus proceeding in 1987. In fact, the certificate of service on the Eighth Circuit brief! submitted on behalf of Judge Woods shows Mr. Walker as one of those lawyers who was served. (See Response of The Honorable Henry Woods, US. District Judge for the Eastern District of Arkansas, to Petition for Writ of Mandamus -- which was attached to Joshua's November 8 motion). This being so, it is hard not to believe that Joshua's counsel -waited to see how the case turned out, and, when the result did not suit them, they then raise the recusal issue. The Eighth Circuit has long disapproved of this tactic . ... .it is clear that some of the Court's findings regarding its role when in private practice are inconsistent with the findings of the Court of Appeals regarding the same matter .... I am without a clue as to what Joshua means by the above-quoted language. In any event, after having reviewed the brief that I filed on behalf of Judge Woods in 1987 I see no reason to change my mind in any respect, and see nothing in the brief that adds anything to Joshua 's earlier motion for a hearing. None of the issues, listed by way of history only, in that brief were before me in the current litigation. And, as stated in my earlier order, I represented none of the parties, and had no involvement in the merits of the case. So, with respect to my order of October 29, 2002, I'll stand pat -- Joshua's request that I reconsider that order is denied. rft IT IS SO ORDERED. Dated this 2 day of November, 2002. THIS DOCUMENT ENTERL.J ON DOCKET SHEET IN COMPLIANCE WI/Tt._ RULE 58 AND/OR 7~9 )) FFR RCCFP ON _t_/;)..,{;))--BY ~ -7~_...,\u0026lt;;..:'--~- 9Nr!lOllNOW NOllVS3HS3S30 ~O 3~1.HO ZOOl 8 I AON LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. i\\1RS . LORENE JOSHUA, ET AL. KATHERINE KN1GHT, ET AL. RECEIVED NOV 1 3 2002 OFFICE OF DESEGREGATION MONITORINO NOTICE OF APPEAL DEFENDANTS INTERVENORS INTERVENORS The Joshua Intervenors give notice of appeal pursuant to Rule 3(a) of the Rules of Appellate Procedure with respect to Honorable William R. Wilson Jr. 's memorandum opinions and/or judgments entered herein on September 13, 2002 and October 11, 2002 respectively. ) ,/i) .,, ,/ ~- ,/ ,, ~!,, '/!Ji.;f I f.-,.,. . J/._ /J/!,rla_ 1 ---:\"i;:J Robert Pressman 22 Locust A venue Lexington, MA 02421 781-862-1955 J n . Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501-374-4187 Rickey H. Hicks Attorney At Law 1100 North University, Suite 240 Little Rock, AR 72207 501-663-9900 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Notice of Appeal has been forwarded to all counsel of record via United States mail, postag repaid on this 2th day 'November, 2002. / \\ RECEIVED FiLr::0,-. ;:::.,s lJ.s. DIST-R \"- --n, TERN DISTRICT COURT ICT ARKA,\"iJSAS NOV 1 9 2002 OFFICE OF DESEGREGATION MONITORING NOV 18 2G02 JAMES W ti, By ilcCORMA CK Ct \" , -ER!'( IN THE UNITED STATES DISTRICT COlJRT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 82:CV00866 WRW PlJLASKI COUNTY SPECIAL DISTRICT, ET AL. NfRS LORENE JOSHUA, ET AL. KA THERINE W. Ki'\\ITGHT, ET AL. JOSHUA INTERVENORS' SUPPLEMENTAL MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS PCSSD'S MOTION FOR APPROVAL OF MIDDLE SCHOOL STTE The Joshua Intervenors respectfully request that the court further extend the time for their response to the pending motion of the PCS SD regarding the construction of a middle school in the Maumell e area. The Joshua Intervenors have requested the perspective of the Office of Desegregation Monitoring regarding the subject. The parties have not yet been privy to that for the reasons which relates to the personal circumstances of the ODM Director, M,s. Nfa.rshall. (See Exhibit 1 - Letter dated November 18, 2002 to Honorable Judge William R Wilson) Counsel for Joshua have sought to obtain the concurrence of the PCS SD counsel and learned that he is out ill today. WHEREFORE, the Joshua Intervenors respectfully request that the court extend the time to and including December 6, 2002 for their response to PCSSD's Motion for Approval of 1'liddle School site. Respectfully submitted, John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (fax) ./ ./ CERTIFlCA TE OF SERVICE I do hereby state that a copy of the foregoing motion has been sent via United Stat es mail postage prepaid to all counsel ofrecord on this 1g r1i day of Novem.,b er, 200J- . . /: ,'\\ I I ./ / ( /~ !-- '1-- C/?L_,{/- 17 '\\ ': 1 ,,, VVV'-- vr \" .;/r c,.\u0026lt;.. '---\"'L/ .. 2 JOHN W. WALKER SHAWN CHILDS JOHN W. '\\iVALKER, P.A. A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FA,'{ (501) 374-4187 Via Facsimile - 604-5149 November 18, 2002 .Honorable Judge William R. Wilson United States District Judge 600 West Capitol, Suite 423 Little Rock, AR 72201 Re: Case No_ 4:82CV0866WRW/JTR LRSD v. PCSSD Dear Judge Wilson: OF COUNSEL ROBE..\"'l.T McHENRY. P _-\\.. DONNA J . .McHENRY 8210 HENDERSON Ro.w LITTLE ROCK. ARK.-u'IS.-\\S 72210 PHONE: (501) 372-3425 FAX (501) 372-3423 ~Lill: mchenryci@swbell.nec RECEIVED NOV 1 9 2002 OFRCEOF DESEGREGATION MONITORING We asked the Court to extend the time for responding to the PCSSD's motion for approval of middle school site until tomorrow, November 19, 2002. The court allowed the request. A partial basis for the request was the intercession of the Office of Desegregation Monitoring with a possible report for the use and benefit of the parties. No one objected to ODNf's involvement. In the meantime, ODM.Director Ann Marshall has experienced well known personal problems of increasing magnitude over the past several weeks which resulted in the funeral of her husband, Mr. Norman Marshall on Saturday, November 16, 2002. We can . understand the reason for any delay from that office. On the basis of those unfortunate circumstances, we are requesting that the Court extend the ODM up to and including December 3, 2002 in which to make its report. We will be prepared to respond to the pending motion of Mr. Jones within three days thereafter and would request that we be allowed!until December 6, 2002 to make that submission. I appreciate whatever consideration the Court will allow. JWW:js cc: :ivfr. Sam Jones Ms. Ann 1Iarshall All Other Counsel EDWARD L . WRIGHT (1903-1977) ROBERTS . LIN D SEY (1913-1991) ISAAC A. SCOTT, JR . JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F . COX, JR . TROY A . PRICE PATR ICIA SIEVERS HARRIS JAMES M. MOODY, JR . KATHRYN A . PRYOR GORDON S. RATHER, JR . TERRY L. MATHEWS DAVID M. POWELL ROGER A. GLASGOW C. DOUGLAS BUFORD . JR . PATRICK J . GOSS ALSTON JENNINGS , JR . JOHN R. TISDALE KATH LYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY 111 LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T . COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER. JR . CHARLES L. SCHLU MBERGER WALTER E. MAY GREGORY T . JO NES H. KEITH MORRISON BETTI NA E . BROWNSTE IN WALTER McSPA DOEN ROGER 0 . ROWE JOHN 0 . DAV IS JUDY SIMMONS HENRY Via Hand Delivery 200 WEST CAPITOL AVENUE SUITE 2200 LITTLE ROCK, ARKANSAS 72201-3699 (501) 371-0808 FAX (501) 376-9442 www . wlj.com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R. LINDSEY JAMES R . VAN DOVER Writer's Direct Dial No. 501-212-1273 mjones@wlj.com November 19, 2002 The Honorable Wm. R. Wilson, Jr. 600 West Capitol, Room 423 Little Rock, Arkansas 72201-3325 J . MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J . SALLINGS WILLIAM STUART JACKSON MICHAEL D. BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C. TAO BOHANNON KRISTI M. MOODY J . CHARLES DOUGHERTY M. SEAN HATCH J . ANDREW VINES JUSTIN T. ALLEN CHRISTINE J . DAUGHERTY, Ph .D . MICHELLE M. KAEMMERLING ERIKA ROSS SCOTT ANDREW IRBY HOLLY A. ACEE MICHELLE HARGIS DILLARD PATR ICK 0 , WILSON Licensed to practice before the Unffed States Patent and Trademark Office RECEIVED NOV 2 0 2002 OFACEOF DESEGREGATION MONITORING Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: Enclosed is a copy of the PCSSD objection to Joshua's request for a further delay in ruling upon the pending PCSSD motion respecting a new middle school in Maumelle. MSJ:ao Encl. cc/w/encl.: 380184-v1 Judge J. Thomas Ray All Counsel of Record Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP drrs.,,, IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL .DISTRICT NO. 1, ET AL. RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. NOV 2 0 2002 INTERVENORS OFFICE OF INTERVENORS DESEGREGATION MONITORING PCSSD'S RESPONSE AND OBJECTION TO JOSHUAINTERVENORS' SUPPLEMENTAL MOTION FOR EXTENSION FO TIME TO RESPOND TO PCSSD'S MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE The PCSSD, for its response states: 1. The PCSSD objects to the further requested enlargement of time. 2. Previously, the parties negotiated an enlargement of time until and including November 19, 2002, for the response of Joshua. 3. The PCSSD is unaware of any directive by this Court to the ODM as respects this issue. The PCSSD notes, however, that the ODM, unlike Joshua, was a full participant in the site selection process. 4. Accordingly, the PCSSD respectfully submits that Joshua has not advanced a good and sufficient reason to further postpone the process of this Court ruling upon the pending request of the PCSSD to locate its new middle school in Maumelle. 380181-v1 WHEREFORE, the PCSSD prays that the Joshua motion be denied and for all proper relief. Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 CERTIFICATE OF SERVICE On November 19, 2002, a copy of the foregoing was served via facsimile on Mr. John Walker and via U.S. mail on each of the following: VIA FACSIMILE Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 380181 -v1 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 1::0W'AHO L , WRl(,t'l't pan,. u 11~ R:O!H'.J:tT S . LlNO~EY fU 13- 199tl 18AAC A , SCOTT, J\" . JOHN G . LI LE 0:0~1)0~ S. RATHER , JR. TE~RY L. MATHfWS ;:;. .:..;;c M. ~c,w..,;. ROGE~ A. G, ASOOW C DOVC LAS a~r-a,qc , .:~. PATRICK J . COSS A l_.$ Tt')N ..Jl:MHIN tlS . J~ JOHN R. TISDALE l(ATMLYN GR4VES M. BAMU'EL J ON$ Il l JOHN WII..LIAM .!SPIV~Y Ill Lt'~ J , MULOROW 11 .M. N0~1'0N i;H;..FH,,fS C. F~1CE. CHAACES T. COLEMAN J1't-'fe J . v .. o veR EDWIN L LOWTHER . JR. CH.-.~L~.! I. .!CMLUMIP!!:'lG''!P\\ W~LTf.R E. MAY OREOOAY T . JONES H . Kt lTM MORRISON lli!TTINA E. lllAOWNSTEIN WALTiA Mc.SPA00fN ROGt.R 0 . ROWE ;o;-.1,_ c. oa,ns JUOY s rMMONS M@NJIY Via Hand Delivery WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORME:YS ;\\ \"! L!'.. 'N 200 WEST CAP ITOL AVENUE SUl'r E. 220~ LITTLE ROCK. ARKANSAS 1n 01 . 3699 (50 1) 371-0808 FAX (501) 376942 OF COuN'iEL ALSTON JENN INQS RCXAi.C ;.. . ,.:.;c; BRIJCf A. . LINOSEY J.11kf! ~ R.. VAN CCV~~ Wri ter, Olrecl Di a l No . So 1.21 2.12r3 .,)ones@w1J.com November 19, 2002 The Honorable V\\Jm. R. Wilson, Jr. 600 West Capito!, Room 423 Little Rock, Arkansas 72201-3325 K IM8RI. Y \\l'/000 TUC J\u0026lt;fF( ~,. 1 f C.CA , J,;.: . TR:OV A, P~1ce ::i:. \":'R::.~;.. 2 :;.:~~:, H.:..~~l~ JAMES M MOOOV. JR . 11.t.TMDV lli! .~ . P R VOP J . MARI( 0.4\\/JS CI.A I Ft E SMOW8 Ml.. NCOCK l( E,Vlf'ril V-t . K!.NNEOV JEaav J. SALUNGS WILLIAM .:!TUAl'l1' JACK.SON MICWAEL O 8A.R:NES l!.7i;;:.,;a;,.. ~ . LANCA,5Te l'f JUDY ROBINSON WJL6tR l(':\"L: r,. W:t .. :-Ot.' C , TAO 80M4 NNON Ki; l!, T I U . Uf')l'){W J . C\"AP.US OOUGHtRT'f' M . SEAN HATCH .J . ANO\"EW' VlN~S .JUST IN T . A U.EN CHRISTINE J. OAUOMER,TV . Pl'l.0 MICHfLLE hi . KAEMMERLING ER+li\\ A. ~OS~ SCOTT ilNDAEW 1R6Y \u0026gt;; Ci..._; A. ;..o~~ '-\"1 1CHEl.. i. ! MAR.0 13 OILLAR:0 P A. 1'\"-JCI( .t\" wn .. SON L\"='9,,~~t1 ti:i ,ar!!:eti-:.e ~~~ !l,e ~!':!?~ 51\"1 Psrenr ena Tr\u0026amp;ll9rnsfl\u0026lt; Office Littie Rock Schooi District v. PuIasK1 County Special School District; et al. r USDC Docket No.: 4:82CV00B66WRW ., . ( Re: Dear Judge Wilson: --,/\\If~/~ JV ' l\u0026gt;\"' Enclosed is a copy of the PCSSD objection to Joshua's request for a further delay in7 r'J!ing upon the per.ding PCSSD motion ;espacting a new middle schooi in iviaumelie. / MSJ:ao Enc!. cc/w/enc!.: 38C1S4-v1 Judge J. Thomas R.ay All Counsel of Record Cordiaiiy yours, ':AAt.AI cmr-. WRIGHT, LINDSEY \u0026amp; JENNINGS LLP r;}.J~ oAt-J~ ~ ~A- Jones, !II iJli., ,J I_ If-() 2- ( ' , - /'d_ ~/4 t-1~ /4r C~\" I n. _ ~.J)/) /11,-,1 /J~ I V ./ ,//' - d\"rlf~' )U ..... V. TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKA.i.\\TSAS Telepb.one 501-604-5140 Fax Number 501-604-5149 Chris Heller \u0026amp; Clay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennb Hanson Ann Marsha!! 376-2147 376-9442 375-1027 663-6939 374-4187 682-2591 371-0100 There are Y pages, including this Co\\.er Sheet, being sent by thfa facsimile transmission. MESSAGE SENT BY: Office of Jud e m. R. Wilson, Jr. U. S. District c'ourt 600 West Capito!, Room 423 Little Rock, Ar-kansas 72201 Christy Conrad, LRSD Law Clerk 604-5143 RECEIVED FILED U.S. DISTi'\u0026lt;ICT COURT NOV 2 1 2002 EASTERN DISTRICT ARKANSAS - OFFICEOF IN THE UNITED STATES DISTRICT COURT EASTER.t~ DISTRICT OF ARKANSAS NOV 2 0 2002 DESEGREGATION MONITORING WESTERN DIVISION JAMES W. McCORMACK, CLERK LITTLE ROCK SCHOOL DISTRICT By: ___~ P=L~AIN~=T=I=~=p=- c=L-E-R---K VS. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al R ECEIVf r- DEFENDANTS INTER VENO RS INTER VEN ORS MRS. LORENE JOSHUA, et al KATHERINE KNIGHT, et al r\" DESEer'\" ... ~ . .i .. G ORDER Yesterday, I received a letter and motion from Joshua's counsel requesting an extension of their deadline for responding to PCSSD's motion for approval of a middle school site. Joshua - requested a new deadline of December 6, 2002, in order to allow the ODM up to and including December 3, 2002, to report to the panies regarding the motion. Joshua's request for an extension is GRANTED. IT IS SO ORDERED this 19th day of November, 2/4. u)~L=-= Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET ~LIANCE WITH~ULE 58 AN~ oN //~MJ;)::) sv~~~g,~ 708 Office of Desegregation Monitor One Union National Plaza 124 West Capitol Suite 1895 Little Rock, AR 72201 de Case: 4:82-cv-00866 FILED u S DISTRICT COURT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NOV 2 5 2002 WESTERN DIVISION JAMES W. McCORMACK, CLERK By: DEP CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. \"MRS. LORENE JOSHUA, et al. KATH;ERINE KNIGHT, et al. ORDER RECEIVED DEFENDANTS NOV 2 6 2002 INTERVENORS DFFICE0F INTERVENORS DESEGREGATION MONITORING The Court has received the 2002-2003 budget for the Office-of Desegregation Monitoring. The budget is attached to this Order for the parties' review. The parties have to and including fifteen days from entry of this Order to file objections regarding the proposed budget. ,\\ IT IS SO ORDERED tlris lS_ day ofNovember, 2 1 00/ ~---------------- -- / 4 ~ - UNITED ST ATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 A~79C)) FRCP , 0 N / /-e,..S--O ~ \\., Q,0._, \u0026amp;-J 3 -Office of Desegregation Monitoring United States District Court Eastern District ot Arkansas Jls. Marshall, Federal Monitor November 20, 2002 The Honorable William R. Wilson, Jr. United States District Coun 600 West Capitol, Room 423 Little Rock, AR 72201 Dear Judge Wilson: One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 (501) 376-6200 Fax (501) 371-0100 Attached is the ODM budget for 2002-03, which reflects your requirements. The format of the budget document follows that of our previous budgets, including annotations to explain revenue calculations, definitions of budget categories, and the budgeted allocations for the year by category. Revenue for the year is apportioned among the three school districts according to the previous year's October 1 enrollment. Once the October 1, 2002 enrollment is known, we will adjust each district's contribution to conform to those figures. As is our practice, we credit the difference in budgeted expenses and actual expenditures proportionately to the school districts according to each district's pro-rated contribution to our budget. If you or the parties should need any additional information, I will gladly provide it. Sincerely yours, ~77(~ Ann S. Marshall ~ v\u0026lt;c: The Honorable J. Thomas Ray Enc. - - - OFFI CE OF DESEGREGATION MONITORING: BUDGET FOR 2002-03 i i ' I I l I I I I REVENUE Sta te of Arkansas LR SD Budget allocation Minus credit from previous year Equals LRSD's share of the budget NL RSD 2001-02 2001-02 2002-03 BUDGET ACTUAL BUDGET 200,000.00 200,000.00 : 200,000.00 241,568.62 241 ,568.62 181 ,288.00 70,1 00.35 70,100.35 43,979.00 ,o .. u 171,468.27 171,468.27 : 137,309.00 I Budget allocation 87,824.70 87,824.70 i 65,909.00 Minus credit from previous year 1.. ..... 25,485.69_ _ ....... 25,485.69 .. i15'989_00. . Equals NLRSD's share of the budget I 62,339.01 62,339.01 ! 49,920.00 PC SSD Budget allocation Minus credit from previous year 177,677.68 , 177,677.68 133,341.00 ....... 51 ,559.96 .. \\ ........ ?.:.:~~.~.:~ ........... ~~:~.~.:~ .. Equals PCSSD's share of th~_b u_d_g_et~1_ _1_ 26_,_1_1_7. 7_2--+-_126,_11_7.72~ ; _ 1_0_0_,9_9_3_o._o___. l I Int erest 0.00 I 10,554.71 ' 0.00 I I I I I To tal Revenue 707,071 .00 717,625.71 ! 580,538.00 No te: The sum of the credits in the above chart is the unspent amount of our previous year's budget, luding bank interest earned. Every budget cycle, QOM applies this amount toward each school trict's budgeted allocation. Both that allocation and the credit are determined for the proposed dget by the previous year's October 1 enrollment numbers, then adjusted accordingly when the rollment numbers for the current year become available. inc dis bu en EXPENDITURES 2001-02 2001-02 2002-03 BUDGET ACTUAL BUDGET C ommunications 10,000.00 i 9,679.11 I 9,700.00 i 1 D ues and Fees 4,000.00 1,763.00 ; 439.00 I I E quipment 6,000.00 2,262.59 i 0.00 Fo od Services 200.00 212.89 ! 0.00 M anagement Services 20,000.00 2,350.00 : 5,000.00 ! p eriodicals 4so.oo I 301 .94 ' 80.00 ! p rinting \u0026amp; Binding 6,000.00 i 5,076.56 6,000.00 Pr of \u0026amp; Tech Services 6,500.00 j 1,655.00 1,700.00 R ent 46,231.00 \\ 46,230.96 47,896.00 I R epairs \u0026amp; Maintenance 1,000.00 379.73 : 400.00 I R I esource Library 200.00 ! 447.83 : 0.00 ! s alaries 469,296.00 443,296.24 i 410,770.00 B enefits 109,794.00 100,616.05 ; 91 ,166.00 ' , St aff Development 1,000.00 89.34 : 0.00 ! ' s upplies 7,750.00 7,067.09 6,643.00 , Tr avel 18,000.00 4,078.10 200.00 In surance 650.00 -197.00 544.00 T otal Expenditures 707,071.00 625,309.43 i 580,538.00 ANNOTATED ODM BUDGET FOR 2002-03 REVENUE The Court's Interim Order of June 27, 1989 required that: ... [T]he amount previously ordered for the Pulaski County Educational Cooperative (Co-op) [$200,000.00] shall be applied toward the budget of the office of the Metropolitan Supervisor .... The balance of the budget will be apportioned among the school districts on a per pupil basis .... Eighth Circuit Order of December 12, 1990: ... [T]he office previously known as the Office of the Metropolitan Supervisor will be :rreconstituted as the Office of Desegregation Monitoring .... 10/1/01 % of Total 2002-03 Enrollment Enrollment Budget Allocation LRSD 25,367 I 47.64 1 1a1.2aa NLRSD 9,220 17.32 I 65,909 PCSSD 18,657 35.04 I 133,341 I 1 State of AR N/A I N/A I 200,000 Total 53,244 100.00 580,538 2001-02 Credit {Budget not spent) I 43,979 ! 15,989 \\ 32,348 I N/A j 92,316 I 2002-03 Budget Payment 137,309 49,920 100,993 200,000 488,222 This chart shows that the 2002-03 Budget Allocation, the 2001-02 Credit, and the 2002-03 Budget Payment are apportioned among the three school districts according to last year's October enrollment numbers. After the final 2002-03 enrollment has been tallied, we will adjust the figures accordingly and notify each district of the exact amount due for its share of ODM's 2002-03 budget. Described below is the step-by-step process, reflected in the chart above. that we use to determine each district's contribution to the ODM budget: 1. The State of Arkansas' contribution ($200,000.00) is subtracted from ODM's total budget. 2. Based on the previous year's October 1 enrollment, the districts are charged their pro rata share of OD M's budget (minus the state's contribution). 3. Each district is credited with its pro rata share ( or estimated share) of ODM' s unspent budget for the previous year. 4. Each district contributes that sum to ODM' s budget or, if the credit has been estimated, each district will be notified of the exact amount due for its share of ODM' s budget before the close of the current fiscal year. Page 3 EXPENDITURES Note: Definitions of expense categories are based on the Arkansas School Financial Accounting Manual. Communications: Services provided by persons or businesses to assist in transmitting and receiving messages or infonnation. This category includes telephone services as well as postage machine rental and postage. I 2001--02 Budget 2001-02 Expenditures i 2002-03 Budget i .__ 9,679.11 I s.100.00 I _____ ......._ ________ __._ ___ 10,000.00 Dues and F~es: Expendirures or assessment for membership in professional or other organizations or associations or payments to a paying agent for services provided, such as conference registration fees. j 2001--02 Budget I 2001-02 Expenditures I 2002-03 Budget ! J._ __4_ ,o_o_o.o_o ....I.. _____1 _,_76_3_.o_o .i... _ ___ 439.oo I Equipment: Expenditures for the initial, additional, and replacement items or equipment, such as furniture and machinery. I 2001--02 Budget I 2001-02 Expenditures I I 6.000.00 i 2.262.ss I 2002--03 Budget ! I 0.00 j Food Services: Expenditures for fooci or preparation and serving of food, which may include catering. I 2001--02 Budget 2001-02 Expenditures I I 200.00 I 212.ss I 2002-03 Budget ! 0.0Q II I Management Services: Services performed by persons qualified to assist management either in the broad policy area or in general operations. This category includes consultants, individually or as a team, to assist the chief executive in conference or through systematic studies. ! 2001--02 Budget I 2001-02 Expenditures I 2002--03 Budget ; \\'--___2 0_o,oo_.o_o-'j- _____2 .3s_o.o_o-'l- ____s, ooo.oo ! Page4 Periodicals: Expenditures for periodicals and newspapers for general use. A periodical is any publication appearing at regular intervals ofless than a year and continuing for an indefinite period. I 2001-02 Budget ! 450.00 I 2001-02 Expenditures I 301 .94 I 1 i 2002-03 Budget ! ao.oo I I Printing and Binding: Expenditures for job pnntmg and binding, usually according to specifications. This includes the design and printing of forms as well as printing and binding publications. 2001-02 Budget I 2001-02 Expenditures ! 2002-03 Budget e.000.00 I s.076.56 I e.000.00 Professional and Technical Services: Services which by their nature can be performed only by persons with specialized skills and knowledge. 2001-02 Budget I 2001-02 Expenditures 2002-03 Budget e.soo.oo I 1.6ss.oo 1,700.00 Rent: Expenditures for leasing or renting land and buildings for both temporary and long-range use. 2001-02 Budget / 2001-02 Expenditures I 46,231.00 I 46,230.96 I 2002-03 Budget ! 47.896.oo I Repairs and Maintenance: Expenditures for repairs and maintenance services which restore equipment to its original state or are a part of a routine preventive maintenance program. This includes service contracts and contractual agreements covering the maintenance and operation of equipment and equipment systems. 2001-02 Budget 2001-02 Expenditures 1,000.00 379.73 I 2002-03 Budget I 400.00 i Resource Library: Expenditures for regular or incidental purchases of library books available for general use. ' 2001-02 Budget 2001-02 Expenditures i 200.00 447.83 I ! 2002-03 Budget ! I 0.00 ; I Page 5 Salaries: Salaries are the amounts paid to employees who are considered to be in positions of a permanent or temporary nature. 2001-02 Budget 2001-02 Expenditures 2002-03 Budget I 469,296.00 443,296.24 410,TTO.OO I Below is a breakdown of each employee's budgeted 2002-03 salarv Name of Employee 2001-02 Salary I 2002-03 Salary Ann Marshall 116,688.00 116,688.00 I Melissa Guldin 1 54,368.00 21,842.00 Gene Jones 2 57,021 .00 57,021 .00 Margie Powell 67,960.00 67,960.00 Horace Smith 67,960.00 67,960.00 r\"'011, -,ai':-.c, : I 51 ,011 .00 51,011 .00 Linda Bryant 28,288.00 28,288.00 Total 443,296.00 410,TTO.OO 1Melissa Guldin retired on September 30, 2002. 2Gene Jones, who works 4/5 time, elected to receive payment for annual insurance premiums in lieu of the insurance benefits; his salary reflects that decision. Benefits: Benefits are the amounts paid in behalf of employees and not included in the gross salary, but are over and above. Such payments are fringe benefit payments. 2001-02 Budget \\ 2001-02 Expenditures I 2002-03 Budget 109.794.oo 1 100.s1s.os I 91 .166.oo I Below is a breakdown by category of each employee's 2001-02 budgeted fringe benefits: Name ! Car Social I Retire- Hospital- Life I Dental I Hospital I I Short Total I Allowance Security ment -ization Ins. I Indemnity Term Benefits I Brown i 1.800.00 I 6,981 .88 Ii 14,218.56 2,253.12 44.16 I 238.56 : 60.96 1 62.88 25,660.12 Guldin ! 300.00 I 1,693.83 ! 1,667.04 563.28 11 .04 I 59.64 i 15.24 I 15.72 4,325.79 Jones i 960.00 4.435.55 l -0- -0- .o- I .o- I .o- I I -0- 5,395.55 Powell !; 1,200.00 s .290.14 I 82,99.20 2,253.12 44.16 i 238.56 60.96 \\ 62.88 I 17,449.62 i I Smith I I 62.88 ! I 1,200.00 5,290.74 I 8,299.20 2,253.12 44.16 238.56 60.96 ! 17,449.62 Ramer I 0.00 3,902.34 l 6,121.32 2,253.12 44.16 !i 238.56 60.96 I 1 62.88 12,683.34 Bryant ! 0.00 2,164.03 i ! I 3,394.56 2,253.12 27.60 II 238.56 60.96 j 62.88 8,201.71 Total I 5,460.00 29,759.11 I 41,999.88 11,828.88 215.28 I 1,252.44 320.04 I 330.12 91,165.75 Page 6 I ' I I I I I I ' i I ! I i Staff Development: Services performed by persons qualified to assist in enhancing the quality of the operation. j 2001-02 Budget j I 1,000.00 I 2001-02 Expenditures I 2002-03 Budget I 89.34 ! 0.00 / I Supplies: Expenditures for all supplies for the operation, including freight and cartage. Amounts paid for material items of an expendable nature that are consumed, worn out, or deteriorated in use or items that lose their identity through fabrication or incorporation into different or more compiex units or substances. \\ 2001-02 Budget \\ 2001-02 Expenditures j 2002-03 Budget ! I 7,750.00 I 1.001.09 I s.643.oo I Travel: Expenditures for transportation, meals, hotel, and other expenses associated with traveling or business, such as parking fees. Payments for per diem in lieu of reimbursements for subsistence (room and board) also are charged here. ! 2001-02 Budget I 2001-02 Expenditures i 2002-03 Budget , I I 18,000.00 j 4 ,078.10 j 200.00 I Insurance: Expenditures for all types of insurance coverage such as property, liability, fidelity, as well as the costs of judgments. 2001-02 Budget \\ 2001-02 Expenditures ! 2002-03 Budget ! I 650.00 j (197.00) j I 544.00 ! Page7 EAsTMRG(f%5/2 IN THE UNITED STATES DISTRICT COURT ISTRJcT ARKfJSA.s EASTERN DISTRICT oF ARKANSAS Nov WESTERN DIVISION 2 5 20 02 -~:_MES W. McCORMACK, ~--- CLERK LITTLE ROCK SCHOOL DISTRICT FF DEPCLERI( V. CASE NO. 4 : 82CV00866 PULASKI COUNTY SPECIAL SCHOOL 'DISTRICT NO . 1, ET AL. MRS. LORENE JOSHUA, ET AL . KATHERINE KNIGHT,, ET AL. RECEIVED NOV 2 6 2002 OFACEOF DESEGREGATION MONITORING DEFENDANTS INT ERVEN ORS INT ERVEN ORS Motion for Recusal of Dis_tric\\ Judge and .for Vacating of : Ord~rs., Rulings and -nidgments The Joshu a Jntervenors. respectfully move for the entry of - orders providing for the recusal of the court (Hon . Wil l iam R. Wils.on, Jr.) and for the vacating of all orders , rulings and judgments, including the memorandum and j udgment of September 13 , 2002, e ntered subsequent to the reass i gnment of this case to t his court (Judge Wilson) . This motion is based upon 28 U. S . C,455(b) (2), Rule 60(b) (6), Fed . R. Civ. Pro., the follo~ing allegations, the decl aration of Robert Pressman , the affidavits of Rickey Hicks and John W. Walker , and the accompanying memorandum. 1 . On November 30, 1982, the Little Rock School District filed this case , Civil Action No . 82 - 866. The Honorable Henr y L . Woods was then assigned to handle the matter . 2. On March 23 , 1984 , the Court of Appeals for t he Eighth 1 - - - Circuit held that Judge Woods had erred, when he refused to allow the intervention in this case of class representatives of African American students in the LRSD , NLRSD, and the PCSSD (known thereafter as the \"Joshua Intervenors \" ). 3 . . On April 24, 1987, the LRSD moved for the recusal of Judge Woods pursuant to 28 U.S . C. 455a . Judge Woods denied this motion on April 30, 1987 (see 660 F . Supp. at 624). 4 . On April 30, 1987, Judge Woods also denied the Joshua Intervenors' motion for recusal based upon 28 U.S . C. 455(b) (2). See 660 F. Supp. At 636-37. 5. Employing the procedural device of a writ of mandamus, the LRSD on August 24, 1987 sought appellate review of Judge Woods' denial of its recusal motion . The Jo.shua Intervenors pursued - appellate review of the denial of their recusal motion in an appeal addressing several district court judgments and by supporting the LRSD petition. 6 . Then in private practice, his honor, William R. Wilson , Jr . , was retained by Judge Woods to ~epresent the judge in the Court of Appeals with regard to the mandamus petition . See Attachment A. In representing Judge Woods, h.is honor served as a lawyer in this case. See Order Denying Motion for Hearing Regarding Relevance of 28 U. S . C. 455 to the Present Proceedings, Oct . 29, 2002, at 2 ( \" I entered the case, at that time , fo:r: the limited purpose of representing Judge Woods before t he Eigh t h Circuit i n connection with the request that he be disqualified . 11 [ emphasis added]) 2 7. The Court of Appeals for the Eighth Circuit has construed 28 U.S.C. 455(b) (2) to require recusal of a judge in a case in which he or she served as a lawyer while in private practice. In construing 455(b) (2), this court has erred by limiting its focus to language in which the Court of Appeals considered whether (b) (2) might have an even broader scope, deciding that his honor's -involvement in 1987 did not fall within that possible additional prohibition. 8. A district judge has an independent responsibility to consider the applicability of 28 U.S.C. 455(b) (2). Upon receiving reassignment of this case, this court did not orally or in writing raise with the parties or rule upon the applicability of Section 455, in the light of his honor's earlier \"appearance in the .case\" - as a lawyer. Order, Oct . 29, 2002, at 4. 9 . Robert Pressman first learned of his honor's earlier role as a lawyer in this case on October 18, 2002 , while doing research on the matter of recusal; this research was prompted by Mr. Pressman's learning of the court's employment of Ms. Janet Pulliam as a law clerk. On October 22, 2 002, when reporting on this research to John W. Walker, Mr. Pressman also mentioned his rionor's earlier role in this case. Mr. Walker had forgotten the matter. See Declaration of Ropert Pressman (Attachment B) and Affidavit of John W. Walker (Attachment C)to this Motion. Attorney Rickey Hicks was not aware of his honor's earlier service until late October, 2002 (Attachment D) . The motion has been filed within a reasonable period ~fter the foregoing events. 3 10. In the 14-year period from the time that hi$ honor served as a lawyer in this case (November 6, 1987)until the reassignment of this case to his honor (January 3, 2002): (a) the Court of Appeals entered at least 13 published opinions in this case1 and the district court at least 5; 2 (b) the district court clerk's office docketed thousands of pleadings and other items in this case [see also Memorandum Opinion of September 13, 2002, at 9 n. 15 [-The pleadings in this case alone now occupy hundreds of feet of file space in the clerk ' s office. ' J (c) Judge Wright received approximately 743 exhibits; (d) the Office of Desegregation Monitorin~ submitted at least 49 written reports; ( e) Joshua Intervenors' lead counsel, John W. Walker, r~presented clients in many hundreds of other cases and discussed civil rights and other legal issues with thousands of persons who contacted his office. 11 . Implementation of 28 U.S . C. 455 requires that the court recuse . 12. In the circumstances of this case, governing legal standards require that the court vacate all orders , rulings and judgments entered s ubsequent to the court ' s receiving reassignment These decisions are 92 1 F . 2d 1371; 928 F . 2d 248; 949 F . 2d 253; 971 F . 2d 160 ; 17 F . 3d 260; 56 F. 3d 904; 60 F . 3d 435; 83 F . 3d 1014; 109 F . 3d 514; 112 F . 3d 953 ; 127 F . 3d 693; 131 F. 3d 1255; and 148 F . 3d 956 . 2 These decisions are 716 F. Supp. 1162; 726 F . Supp. 1544 ; 769 F . Supp . 1483 ; 769 F. Supp . 1491; a nd 778 F . Supp 1013! 4 . . , J - of the matter. Rule 60(b) (6) provides a vehicle for accomplishing this action. 13. The circumstances referred to in paragraph 12 include the following: (a) After the time that his honor represente' d Judge Woods in. . this case, Judge Woods expressed negative views on the fees for attorneys in the case, particularly the Joshua Intervenors. See 726 F. Supp. At 1554-56; 740 F. Supp at 634, 635; Judge Henry Woods and Beth Deere, 'Reflections on the Little Rock School Case 11 44 Ark. L. Rev. 971, 998, 1000, 1005-06 (1991). (b) In the opinion of September 13, 2002, this court drew upon (at 43) and built upon (at 38-44) Judge Woods' conclusion about attorneys ' fees, al though recognizing that the matter was ,'not - directly relevant to the issue of unitary status ... ' 1(at 40). (c) A neutral observer could reasonably construe this court's conclusions about attorneys fees pa.id to Joshua Intervenors to be that: the fees paid were excessive; the fees paid diminished the educational opportunities of the student .members of the intervening class; additional fees were sought when they should not have been; and additional fees were paid in exchange for an agreement to support the revised plan. (d) It is reasonable to conclude that Judge Woods' views about attorneys' fees in this case had a greater influence on this court, after receiving assignment of this case, . because his honor had earlier assumed an advocacy role for Judge Woods by representing him in this case. 5 r (e) The Joshua Intervenors' evidentiary presentation in the July, 2 002 hearing was made principaly by lead counsel . John W. Walker. As of this time (or at least by the time of the release of the Memorandum Opinion), this court held negative views about Mr. Walker's earlier role in this case. See sub-paragraph (c). These vi~ws were linked to this court's earlier role as a lawyer in this case. See subparagraph (d). It was unfair and inappropriate for Intervenors' evidentiary presentation to be evaluat~d under this cloud. (f) On appeal, this court's factual findings will be reviewed under the ~'clearly erroneous'' standard, not de nova. (g) The court's decision in this case is marked by fealty and deference to Judge Henry Woods, the individual whose positions this - court was obligated to champion, when serving as an attorney in this case. WHEREFORE the Joshua Intervenors respectfully pray that this court recuse from this case after vacating all orders, rulings and judgments, entered subsequent to the reassignment of this case to this court, including the Memorandum Opinion and judgment of September 13, 2002. The Joshua Intervenors further pray that this court refer this case to the chief judge for reassignment and grant such other and further relief as the needs of justic~ may require.- Respectfully subrr ted, Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862 - 1955 . 6 \\ ,' / ,)! .v?v/L /.{ I J n W. Wa!ker J[ n W. Walker, 1723 Broadway Little Rock, AR / D~[ /IY. ~ /(JVg-1 P.A. 72206 Mass. 405900 /,J / . ~ f/ ,, i 'f---iL-zA~ I Lk/4 Rlcky . ks Attorn ~y at Law 501-374-3758 Ark. 64046 1100 North University, Suite 240 Little Rock, AR 72207 501-663.-9900 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Motion has been forwarded to all ~ounsel of record via United States mail, postage prepaid on this ~?--day of November, 2002. 7 !.A.=:l qD91'tG7\"TmRllSIXUT 'P. 0. IKll:11 urn.E:ROCK, AlllC.L'if54.S ,-2,.'\u0026gt;0;! Wl\u0026gt;C. ~ W!l$.ON,Jlll. t ~l'IID!=l\u0026gt;\u0026lt;-t aitOltANNllT. \"1II..'l0N c;.L'll/l).i;;Qllt.'1,( TJMar= O. lllml.2Y SQ1J!1S-\u0026amp;i~ September 8, 1987 RE: L~ttle Rock School Dist . . Petitioner, v. Honorabie Henry Woods, Respondent Eighth Circuit No. 87-2150 Mr- Robert D. St . Vrain Eighth CiJ:'cuit Clerk 511 U\".S. Court and Custom House 1114 Marke~ Street S~. Lou~s, Missouri 63101 Dear ~..r. Sc. Vrain: F. l L E D ----;J SP S 1987~ ROa.ERT D. ST. VRAiN. CLERK tl\u0026gt;LfJOADldtT'Tl!ll.0 ?!UC'TICZ l:'J AL..o.S~ EXPRESS MAIL I have just been retained by The Honorable Henry i.7oods to represent him in the referenced matter_ I.: is my understanding that our . response is due in the Eighth Circuit on or before . Septemb~r 14, 1987. If this is not correct, I would appreciate it if you .would advise me for'thwith. I understand, also, that this letter will suic:e as my \"entry of appearance.\" Again, if this is net: correct, please let me, know as soon 2.s pos.sible. Thank you very much for your consideration_ Cordially, fJ/t~ Wm_ R_ Wilson, Jr. WRWJr:skm. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 Declaration of Robert Pressman Robert Pressman declares as follows: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. I have undertaken various assignments in this case, at the request of John W. Walker, since the latter part of 1995. 2. On October 15, 2002, d~ring a telephone conversation, John W. Walker i11-formed me of this court's .employment of Ms. Janet Pulliam as a law clerk. He further stated that she had been one of the attorneys for the Little Rock School District in the first phase of this civil action. We discussed my doing research about recusal under 28 U.S.C. Sec. 455, in view of Ms. Pulliam's present and former roles. 3. I then did research at the law library of the New England School of Law in Boston on October 18, 2002. During the course of that work, I noticed in the United States Code Annotated a note on the decision in this case published at 833 F.2d 112. Upon opening 1 that volume to the two-page decision, I noted: William R. Wilsqn, Jr.; Little Rock, Ark. for Judge Woods in mandamus. This entry provided my first knowledge of his honor's involvement in this case while in private practice. 4. On October 22, 2002, I discussed the results of my research on Section 455 in the context of law clerks with Mr. Walker by telephone. I also mentioned the opinion showing his honor's representing Judge Woods on the mandamus issue in this case. At this point, Mr. Walker did not say directly or indirectly that he remembered this fact prior to my mentioning it. 5. A circumstance convinces me that Mr. Walker would have raised the matter of his honor's earlier role in this case had he remembered it. Prior to the July 2002 hearing, Mr. Walker and I had multiple conversations about _our prospects for success on the issues tried before Judge Wright and the is?ues to be tried before his honor. We both voiced pessimism, based upon our perceptions of his honor's record in civil rights cases. In this light, my conclusion is that Mr. Walker would have at least raised for discussion on these occasions before the July 2002 hearing the matter of seeking recusal, if he had recalled his honor's earlier appearance in this case as counsel. I declare under penalty of perjury that the foregoing statements are truthful and complete. Date Robert Pressman 2 IN THE UNITED .STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF VS. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, NO. 1, ET AL: DEFENDANT INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL. KA THERINE vv. KNIGHT, ET AL. AFFIDAVIT OF JOHN W. WALKER ~omes now the affiant who states as follows: 1. 2. I did not remember His Honor's appearance in this case in 1987 until some time in October 2002, when Bob Pressman mentioned it to me. Earlier in October 2002, I learned of the Court's employing Ms. Janet Pullium as a lawyer. I discussed this and its possible relatiQnship to recusal on separate occasions with Mr. Pressman and with Mr. Rickey Hicks as well as Ms. Joy Springer of my office. That discussion included no mention of His Honor's e:....rlier role in the case. 3. After the reassignment of this case to this Court, Mr. Pressman and I had several conversations about our prospects. We both had negative outlooks because of our view of the Court's decisions while on the bench. 4. There were other lawyers associated with this case who I did not remember until that memory was refreshed by my review of the pleadings and the decisions in this ATTACHMENTC case after the October 2002 conversations with Mr. Pressman, Mr. Hicks and Ms. Springer. 5. In the period from the time that His Honor represented Judge Woods in 1987 until this case was reassigned to His Honor, my law practice was very active. When.it was assigned to His Honor on January 3, 2002, I was preparing for major surgery. 11 Between 1987 and October 2002, I have represented clients in many htmdreds of other cases and have discussed civil rights and other issues with thousands of persons who contacted my office. . ? Affiant saith nothing fmiher. I COUNTY OF LL/\\ \"'16!~) ) STATE OR ARKANSAS) '): t\u0026amp; Sworn and appeared before me this d '(day of November. 2002. My Commission Expires: 9 \\ t 7; 200:2;; I i ) ) \"-- 1 _,.. (Lo- _ 1 ) 11.--1-- ; r: / 171'\\( ) n f t . .{, ~ ( JJof.. ,,t( Notary 1fublic ATTACHMENTC IN THE lJNITED STATES DI~TRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL \"DISTRICT NO. l, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 AFFIDAVIT OF RICKEY HICKS Rickey Hicks states as follows: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORs 1. I began to _assist John W. Walker i1_1 the representation of the Joshua Intervenors on or about November 19, 2001. 2. In the latter part of October, 2002, John W. Walker and Robert Pressman discussed with me the fact that the court (Honorable William R. Wilson) had served as counsel in this case by representing Judge Henry Woods on a mandamus issue in 1987. This was the first time I heard or received any information about his honor's earlier service in this case. Affiant saith nothing further. coumY oF lno ILL ' STATE OF ARKANSAS ) ) ) Sworn and appeared before me this J.J-day ofNovember, 2002. :. n /t1J1t,,r ;J_/(/I My Commission Expires: 1\" / /7/ZI uu3 r I r:A_u_/:(LE 0 ~ I ERN o,sf~(CT COURT \"'CT ARKAiiiSAs IN THE UNITED STATES DISTRICT COURT Nov 2 5 200') EASTERN DISTRICT OF ARKANSASJAM WESTERN DIVISION By ES w. MccoRMA. ---- CK, CLERK LITTLE ROCK SCHOOL DISTRICT v. CASE NO. 4: 82CV00866, PULASKI COUNTY SPECIAL SCHOOL -DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET . AL. KATHERINE KNIGHT, ET AL. RECEIVED NOV 2 6 2002 OFFICEOF DESEGREGATION MONITORIHG The Joshua Intervenors' Memorandum in DEFENDANTS INTERVENORS INT ERVEN ORS Support of their Motion for the Vacating of Orders and Recusal This court has acknowledged that in 1987, while in private - practice, his honor appeared in this case as a lawyer. 1 Based upon the inter~retation of 28 U.S.C. 455(b) (2) by the Court of Appeals for the Eighth Circuit, that circumstance disqualified his honor from serving later as a judge in this case. In the light of relevant facts and legal standards, the court should now recuse, after vacati_ng all orders, ruling~ and judgments entered since i receiving this case by reassignmeni. A. Under Eighth Circuit Decisions, A Judge Must Recuse When Assigned a Case In which He Earlier Served as a Lawyer The Joshua Intervenors read Eighth Circuit decisions as 1 See Order Denying Motion for Hearing Regarding Relevance of 28 u.s.c. Sec. 455 to the Present Proceedings, Oct. 2~~ 2002, at 2 (\"I entered the case, at that time, .. \"); at 3 (\" ... my appearance fifteen years 'ago ... \"); at 4 (\" ... my appearance in the case ... \"). 1 interpreting 2.8 U.S.C.455(b) (2) to mandate recusal when a judge is assigned a case in which he earlier served as a lawyer. 2 The text on which intervenors rely is as follows. The trial of this case on the merits actually was delayed three years by various intervening motions, most of which are not relevant here. For example, motions for class cert if- ' i' ication and for consolidation with the Clark litigation concerning desegregation of the Little Rock School District (see Little Rock School Dist. No. 1, 584 F.Supp. 328, 334-35 (E.D.Ark. 1984), were denied, and those rulings are not challenged on appeal. Patterson does challenge the refusal of Judge Woods to recuse himself, arguing that recusal was required under 28 U.S.C. Sec. 455(b) (2) because Judge Woods' former law partner, during the time he was associated with the firm, represented parties that sought to intervene in and eventually participated as amicus curiae in the Clark litigation. We agree with Judge Woods that it follows from the denial of the consolidation motion that the matter in controversy' here cannot be the same as in Clark and that the statutory language on recusal relied on by Patterson thus does not apply. Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8th Cir. 1985) (emphasis added) We have previously held, in an appeal involving the same judge and the same connection with Clark, that where the trial court denies consolidation of a related case which might have provided a basis for recusal, 11 it follows ... that the matter in controversy' here cannot be the same ... and that the statutory language on recusal . ... thus does not apply.\" Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8thcir. 1985). Patterson involved an individual racial discrimination suit by an employee of LRSD, and the Joshua Intervenors urge us to distinguish Patterson on the ground that this case is intertwined with Clark in a way that Patterson was not. Under the Joshua Intervenors' interpretation, the matter in controversy' contemplated by the recusal statute may extend beyond the litigation conducted under the same docket number where the issues in the dispute are sufficiently related. Since this case inevitably involves consideration of desegregation within the LRSD -- the focus of the Clark 2 . Sec. 455 (b) (2) reads in pertinent part: \"He shall also disqualify himself in the following circumstances ... (2) Where in private practice he served as lawyer in the matter in controversy .... 11 2 litigation -- the Joshua Intervenors conclude that 455(b) (2) requires recusal. Even if we accept appellants' argument that different cases may constitute . the same matter in controversy, ' an interpretation apparently precluded by Patterson, .the question of what kinds of cases are sufficiently related for the purposes of Sec. 455 (b) (2) would remain a question of judgment . r and degree. We cannot say that the trial judge I s former law t' partner's submission of an amicus. brief in a case involving, to a large extent, different issues and different remedies two decades ago ~equires recusal under Sec. 455(b) (2), nor do we believe that Congress intended such a result. LRSD v. PCSSD, 839 F.2d 1296, 1301-02 (8 th Cir. 1988) .... To determine whether 455(b) requires recusal in this case, I must decide whether the claims filed by Alaska fishermen in Apex's bankruptcy proceeding .as a result of the oil spill are the same matter in controversy' as Artoc' s disputed claim for payment of the assigned invoices. We have previously noted that, if different cases may ever constitute the same matter in controversy for purposes of Sec. 455(b) (2), it is only when the issues in dispute are sufficiently related. 1 Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 839 F.2d 1296, 1302 (8th Cir.), cert. denied, 488 U.S. 869 ... (1988). In Re Apex Oil Co., 981 F.2d 302, 303-04 (8th cir. 1992) ( individual opinion of Judge Loken denying motion for disqualification) These three decisions c;::oncerning 455 (b) (2) touch upon two ' situations. The first is where the earlier service as a . lawyer was in the same case to which the judge is later assigned. The second instance is where the earlier service as a lawyer was in a different case than the judge's current assignment, but, it is argued, the separate cases or issues are so closely related to the current assigned case that recusal is also required by Section 455 (b) (2). As to the first situation, Intervenor's interpretation of the 3 Eighth Circuit language is that the judge must recuse, if he\\she or a partner earlier served as a lawyer in the same case. As to the second situation, Intervenors' interpretation is that the Eighth Circuit has not made a . holding identifying a sufficient relationship, but has left open the possibility that such a tl situation requiring Section 455(b) (2) recusal might exist. Intervenors' position regarding the Eighth Circuit standard finds support in United States v. Cleveland, 1997 WL 222533, (E.D. La.), at 8-9, relied upon by this court in its Order of October 29, - 2002, at 3-4. That court identified the Eighth Circuit rule as follows (emphasis added]: The court notes that the one circuit to have addressed the issue explicitly has read the matter in controversy' requirement of Section 455(b) (2) narrowly. In Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8th Cir. 1985) and Little Rock School District v. Pulaski County Special School District No. i, 839 F.2d 1296, 1301 (8thCir.), cert. denied, 488 U.S. 869 (i988), the Eighth circuit rejected the argument that \"the matter in controversy' contemplated by the recusal statute may extend beyond the litigation conducted under the same docket number where the issues in dispute are sufficiently related.\" Little Rock School District, 839 F.2d at 1302. Thus, under Eighth Circuit law, the matter in controversy' requirement is triggered only if the judge or his or her former partner worked on the case over which the judge is presently presiding. In both Patterson and Little Rock School District, the Court held that a judge was not required: to disqualify himself pursuant to Section 455(b) (2) when his former law partners had filed amicus curiae briefs in a case that helped 'form part of the historical background of the dispute' before the Court. Little Rock School District, 839 F.2d at 1301. In private practice, his honor had \"worked on the case\" reassigned to him upon Judge Wright's withdrawal. Recusal was 4 mandated under the Eighth Circuit's bright line rule. 3 Intervenors respectfully submit that this court erred in its ' application of 455(b) (2) in its October 29, 2002 Order. The court ignored the bright line rule; rather, its focus was on the appellate court's discussion of whether 455(b) (2) was even broader, ,, reaching some situations in which there was an overlap between different cases. The court ruled that its earlier involvement here did not fall within the parameters of this \"standard. 11 This incomplete analysis yielded a faulty overall 'conclusion. The nature of school desegregation cases shows a problem with approaching the matter in terms of whether tha earlier service as counsel in the case involved \"any of the issues (now] pending before (the judge] \"Order, Oct. 29, 2002, at 4. This species of litigation may involve six \"Green factors, \" or even more elements, where, as here, the parties' settlement is more expansive. The court's language might be interpreted to suggest that one could be an advocate in a case in private practice on some such issues, yet be able to later serve as a judge in the same case on others. Respectfully, \"we [do not] believe that Congress intended such a result.\" Little Rock School District, 839 F.2d at 1302. Finally, legislative history supports the interpretation of 455 (b) (2), adopted by the Eighth Circuit and urged here by 3 United states v. DeTemple, 162 F.3d 279 (4th Cir. 1998), a criminal prosecution, cited in the October 29 Order at 3, was not a case in which the judge while in private practice, or a partner, had made an appearance in the current prosecution. 5 intervenors. Prior to 1974, 455 consisted of a single paragraph. In April 1973, the Judicial Conference of the United States adopted for federal judges the American Bar Association's Code of Judicial Conduct. This code was ' more rigorous than Section 455. The 1974 revisions to 455 largely conformed the statute to the ABA Code ,, relating to judicial disqualification. The legislation did add 455 (b) (3) to deal explicitly with the issue of an individual coming to the bench from service as a government lawyer. The Senate and House reports contain this exp~~nation . ... subsection (b) (3) carries forward from subsection (b) (2) a required disqualification where the judge as a government lawyer, had acted as counsel, adviser, or material witness concerning the proceeding. In addition, the judge must disqualify himself where, as a government lawyer, he had expressed an opinion concerning the merits of the particular case in controversy ... See 197 4 U.S. Cong. Code \u0026amp; Adm in. News, 6351-56. B. His Honor Served in this Case as a Lawyer by Representing Judge Woods in the Court of Appeals in 1987 His honor has, as noted, acknowledged his service as a lawyer in this case while in private practice. See supra at n. 1. The I LRSD, however, seemin~ly suggests: that the petition for a writ of mandamus involved a different case -- by the repetitive use of the phrase \"the mandamus action.\" See LRSD Memorandum Brief, Oct. 30, 2002, at 3-5; see also at 4 (\"the mandamus case\"). Any such contention is without merit. The \"Petition for Writ of Mandamus\" employed here in 1987 was not a separate civil action or case, but instead a procedural mechanism used to bring an issue in the underlying litigation, this case, to the Court of Appeals for the Eighth Circuit for review. 6 In Re Kansas Public Employees Retirement System, 85 F. 3d 1353, 1355 (8th Cir. 1996) (petition for writ of mandamus seeking disqualification of district judge; court refers to \"basic underlying suit\" and the \"underlying suit\"; at 1355 and inn. 2); Madden v. Myers, 102 F.3d. 74, 76-77 (3rdCir . . 1996) (\"A writ of ,, mandamus, which is authorized by the All Writs Act, 28 u.s.c. Sec . 1651, . constitutes a procedural mechanism through which a court of appeals reviews a carefully circumscribed and discrete category of district court orders. 11 [footnotes and citations omitted]); United States v. Martin, 96 F.3d 853, 854 (7thCir. 1996) (\"When as is normally the case in the federaL courts mandamus is being sought against the judge presiding in the petitioner's case, - it is realistically a form of interlocutory appeal .... 11 ; \"It is a procedural step in the criminal litigation, like an interlocutory or final appeal or a civil contempt proceeding against a witness.\"); Green v. Nottingham, 90 F.3d 415, 417 (l0thCir. 1996) (\"A mandamus proceeding under section 1651, although characterized as an original proceeding, is not an independent grant of ' jurisdiction, but an aid of appe,llate jurisdiction. 16 Charles A. Wright et al., Federal Practice and Procedure, Sec. 3932 (1977) (quotation omitted). As such, mandamus is part of the litigation of a case . \" ) . 4 In the 'Petition for Writ of Mandamus,' August 24, 1987, the LRSD recognized that the mandamus approach was a part of a single underlying case. At 5 ( ' seeking writ of mandamus directing Judge Woods '' to recuse himself from presiding over these proceedings . . . '' ( emphasis added) ; The LRSD supporting brief stated: '' This Petition seeks to have the Honorable Henry Woods disqualified from presiding over this scho~l desegregation case.\" 7 c. The Motion for Recusal Should Not Be Rejected as Untimely The motion should not, for two reasons, be denied as untimely. 1. The Court Had an Independent Obligation to Address the Matter of Recusal 28 U.S.C. 455(a) and (b) identify various situations in which a judge \"shall disqualify himself [or herself] .... 11 Unlike 28 U.S.C. 144, 455 is, not conditioned on a party's raising an issue of bias. Rather, in keeping with its text, Section 455 has been characterized as \"self-enforcing on the part of the judge.\" Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, .. . . . 1052 (5th Cir. 1975). \"[I]f the judge sitting on a case is aware of grounds for recusal under Section 455, that judge has a duty to recuse him~elf or herself.\" United States v. Sibla, 624 F.2d 864, 868 (9thCir. 1980). See also Roberts v . Bailar, 625 F.2d 125, 128 (6th Cir. 1980) (same); United States v. Davidson, 482 F.Supp. 8.27, 829 (W.D. Okla. 1979) (\"self-enforcing on the part of the judge\"); Bradley v. Milliken, 426 F.Supp. 929, 931 (E.D.Mich. 1977) ( 11 28 U.S.C. Sec. 455 . places the issue of disqualification squarely upon the presiding judge.\") In fulfilling its \"duty,\" the court could have raised the matter here by describing his honor's prior-involvement in the case orally, or in writing, or by addressing it in an opinion. 5 In (at VII). See Attachment to this Memorandum. 5 Little Rock School District v. Arkansas Bd. of Educ., 902 F.2d 1289 (8thCir. 1990) (opinion by Judge Richard Arnold on whether he should recuse on several appeals); In Re National Union Fire Ins. Co., 839 F.2d 1226, 1231 (7thCir. 1988) (\"The best practice is to disclose the details that the judge deems significant, to make a decision by one's own lights, and let 8 either case, the Joshua Intervenors would have been on notice of the matter and had the opportunity to address it, in the latter instance by seeking reconsideration (if the court had declined to recuse). The court did not, however, openly address the matter. 6 Intervenors' motion of October 25, 2002, sought a hearing on the recusal issue. Given the earlier silence on the matter, the motion asked that the court indicate whether upon assignment of the case his honor had considered his earlier role and, if so, the basis for his conclusion that 455(b) (2) did not require recusal. This did not seek an advisory opinion as later argued_ by LRSD, but instead the court's ruling or opinion on a matter it had a \"duty\" to address, the statute being self-executing. The court chose not to respond to these questions directly in its October 29 ruling. Nevertheless, it is our supposition from the content and the tone of that Order and the Order of November 12, 2002, that the court did recall its earlier service in this case as a lawyer, upon receiving this case by reassignment. On this supposition, which we do not, ;for multiple reasons, assert to be \"a lead pipe certainty,\" the failure of Joshua Intervenors to raise the issue before the July hearing was the product, we respectfully counsel speak or keep silence as they will.\"); Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1416 (Fed. Cir. 1989) (district judge made prompt oral disclosure of facts and her decision that she need not recuse). 6 The ''Commentary\" to Canon 3(E) (1) of the ABA Code of Judicial Conduct provides: ' A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the que-stion of disqualification, even if the judge believes there 1s no real basis for dis~ alification.' 9 submit, of the court's silence, despite the self-executing nature of Section 455. 7 2. There Was Other Good Cause for Delay in Raising the Issue Joshua Intervenors did not raise the recusal issue before the July 2002 hearing. However, there is \"good cause\" for failing to - file at an earlier time. Holloway v. United States, 960 F.2d 1348, 1355 (8 t h Cir. 1992). Mr. Pressman and Mr. Hicks were not aware of the court's earlier role in this case until the latter part of October 2002. Mr. Walker had forgotten the matter; his memory was refreshed by Mr. Pressman's inquiry on October 22, 2002. 8 Objective bases render entirely reasonable Mr. Walker's sworn statement that he had - forgotten the court's earlier role. There was_ a tremendous level of activity in this case in the 14 year period between his honor's participation in the case in private practice and its reassignment to him in January 2002. Moreover, this activity was but one part of Mr. Walker's extensive practice. Furthermore, because Mr. Walker and Mr. Pressman were openly ;pessimistic about the prospects for success in his honor's court in their discussions before the July. 2002 hearing (see Pressman Declaration), it is unreasonable to conclude that Mr. Walker would not have at least raised the 7 Mr. Pressman was not aware of the court's prior role until stumbling upon this fact on October 18, 2002; and Mr. Walker did not recall it, until Mr. Pressman mentioned the point on October 22, 2002. See declaration and affidavit attached to the current motion. Mr. Hicks was unaware of this point until late October, 2002. Affidavit attached to motion. 8 See affidavits and .declaration attached to motion. 10 - possibility of seeking recusal for discussion, had he remembered his honor's earlier role in this case. See Motion, para. 10; Pressman Declaration, para. 5; Walker Aff., paras D. Prior to Recusing, th' e Court Should Vacate Orders, Rulings and Judgments Entered Since Receiving Assignment of the Case In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 862-64 (1988), the Supreme Court addresses the question of remedies ~ where recusal is required. Although 455 defines the circumstances that mandate disqualification of federal judges, it neither prescribes nor prohibits any particular remedy for . a violation of that duty. Congress has wisely delegated to 'the judiciary the task of fashioning the remedies that will best serve the purpose of the legislation ... [~t 862] 455 does not, on its own, authorize the reopening of closed litigation. However, as respondent and the Court of Appeals recognized, Federal Rules of Civil Procedure 60(b) provides a procedure whereby, in appropriate cases, a party may be relieved of a final judgment ... (at 863,footnote omitted) ..... we conclude that in determining whether a judgment should be vacated for a violation of 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the ri~k that the denial of relief will produce injus~ice in other cases, and. the risk of undermining the publ_ic' s confidence . in the judicial process ... [at 864] Intervenors respectfully su}:)mit that application of these standards warrants vacating of all orders, rulings, and judgments subsequent to the reassignment of this case to his honor. Joshua Intervenors rely upon the factor of ~injustice to [a party} in the particular case,'' namely, these intervenors. Where, as here, a party appeals a district court judgment, the 11 factor of : injustice r: (or prejudice) to a party may depend upon the issue(s) which will be the subject of the appeal. If the appeal challenges the granting or denying of a motion for summary judgment, for example, the appellate court can likely address an ,'injustice, '1 the matter being subject to de novo review. Parker v. Connors Steel Company, _855 F.2d 1510, 1526 (11th Cir. 1988); In Re School Asbestos Litigation, 977 F. 2d 764, 786,787 (3 r d Cir. 1992). In contrast, matters subject to only \"'deferential review\" on appeal _ are \"more problematic. 11 In Re School Asbestos Litigation, 977 F. 2d at 787. The court's memorandum opinion of September 13, 2002 contains many pages of factual findings. While the appeal is at an early stage, it appears to Intervenors' counsel that it will involve a __ challenge to the correctness of some of the court's findings of fact, both those which are more specific and those which are summary in -nature. ( These contentions would be subject to \"' deferential review '1 ( In Re School Asbestos Litigation, 977 F. 2d 764, 787 (1992) .:. - the \"' clearly erroneous 11 standard. Lead counsel John W. Walker presented the vast bulk of intervenors evidence _before his : honor. This court viewed him through a particulai lens; it was an unfavorable image due to the court's perception of his role regarding attorney's fees. Moreover, it was a perception rooted in his honor's's earlier representation EXAMPLES: at 94(#22), at 100(#12), at 101 (#15,#16), at 102(#19), at 104 (#22), at 107(#27), at 108 (#28), at 126(#10), at 128(#13, at 129(#16), at 133(#24), at 143(#9), at 149(#19)~ 12 of Judge Woods, in this case, while in private. 10 This situation causes ~-injustice\" (Liljeberg) because findings of fact will be subject to only _a limited review on appeal. To be sure, Judge Woods and his honor criticized all attorneys regarding fees; however, the matter is of greater concern at this stage for intervenors, as they had the burden of proof on the matter of compliance with the revised plan. Mem. Opinion, at 74. In this setting, the appropriate remedy is the vacating of all orders, rulings and judgments entered after reassignment of this case to his honor. Compare Preston v. United States, 923 F. 2d . 731, 734-36 (9 th Cir. 1991) (vacating judgment and remanding for ~retrial by a different judge~). Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Mass. 405900 Respectfully submitted, J n 4):Shn W. Walker, 1723 Broadway Little Rock, AR 501-374-3758 Ark. 64046 ,,..,_ ____ r.,::_--1'-I\u0026gt;-'\"\"-._.\u0026lt;..-;_ Rickey: icks Attar ey at Law 1100 orth University-, Suite 240 Little Rock; AR 72207 501-663-9900 P.A. 72206 10 This paragraph relies on the facts set forth in the motion, para. 13. 13 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Memorandum has been forwarded to all counsel of record via United States mail postage prepaid on this \"\"]:'.2 day of November, 2002. 14 . I ~\\\\ i ~Ji i!i! i!1I{ _,~ .; :~ -. r -~,;,-~. .... : }, -.: :;.: t\\i [;~~[ j ~t}:i :/( ,.,::. :.\u0026gt;r:,~,t;.;itT'.~~:,c:::;;; :\u0026gt;\u0026gt;,\u0026gt;,\u0026lt;~-)-t:,,, ~-...... : ,. . . : : -: ;, . -~ .,.:.. --. ! : ,- : . ~-.:~)f -4;_/ ., ;,::/-- n I g tJ IN TBE UNITED STATE$ COURT OF APPEALS FOR THE EIGHTH CIRCUIT LITTLE ROCK. SCHOOL PIS'I'RIC'r APPELLEE vs. POLASKI . COUNTY SPECIAL SCSCiOL scaoot DISTRICT .NO, 1, et.. al. APPELLANTS) ) ) MRS . LORENE JOSHUA' et. al. . ) ) INT\u0026amp;~VENORS) IN RE: LITTLE ROCK SCHOOL DISTRICT, PETITIONER PET TT ION FOR WRI'.I' OF M.A.NDAJ.\\1US The above-named petition~r, the Little Rock School Di.strict , ~ ~ . herein applies for a writ of mandamus pursuant to Section 1651 of Title 28, United States Code (28 O.S.C. 1651) and Rule 211a) of tbe Fed~ra~ Rules of Appelfate Proced~re, ~ir~~t~d to. the ' ! Honorable Henry Woods, Jud~e of the United States District Court for th~ Eastern District of Arkansas, Wes~ern Division. In support cf this application~ tetitioner st~tes~ I. STATEMENT OF FACTS l. In July of 1986, petitioner submitted its faculty assignment plan for the Little Rock School District: to the district. court. (Pe~itioner's Exhibit parts cf r.~SD Pl~n J -1- II . STAT\u0026amp;~ENT OF ISSUES PRESENTED 13. The petitioner filed its mot~on for the district . court to recuse . i tself on .P-_pri_l 22, 198 7 . The district court denied _ the motion on April 30 1 1987. pe-ti tion is whether the q.istrict court erre9 in fail lng to gr2.nt LR.SD' s moti-on .for recusal. tf ' :#\\j TII. REAS-ONS FOR GRANTING !(_EL TEF SOOGE'l' u u f . -, ! r:- !1 .' 14. . The district court, by enga-g.ing in ex rerte communications, by commenting to the public and the press regarding the propriety of LRSD 1 s faculty assignment plan , by attempting to conduct its own discovery and consider evidence outside the record, and by sending letters and issuing orders stating that petition~r has violaied previous orders without hearing any evidence, has established the appearance of -impartiality in violation of ''28 O.S.C. 455(al and the Canons of -; Judicial Eihics, Canons l, 2: and 3 (A){4l . WHEREFORE, petitioner respectfully prays that a writ of mandamus be .issue.cl -by this cclirt directed to the Hono:rable Henry Woods, Judge cf the United St~tes District Court for the Eastern . I District of Arkans~s, West~rn :Division, to recuse himself , frorn presiding over these proceedings and for such further relief as tnis court des~s just ana proper. -5- - --------- _sT~I'.EMENT OF THE CASE The Proceedinqs Below This Petition seeks to have The Honorable Henry Woods disqu~lified from presiding over this school desegregation case. LRSD filed a Motion for the district court to Recuse pursuant to 28 U.S.C. 45S(a), alleging that the district court had demonstrated the appearance of ~rejudice through his actions and extrajudicial comments in response to LRSD's faculty assignment plan. The district court denied LRSD's motion on April 30, 1987 . See Little Rock School District v. Pulaski Countv s-oecia1 School District, No. LR-C_:_82-866 , (E.D . . Ark. April 30, 1987) (Order Denying Recusal} . Statement of Facts This protracted and complex school desegregation case ,,. began in 1982 when th_e LRSD and the Joshua Intervenors filed this action against the Pulaski County Special . School District ( \"PCSSD\" l and the North Little Rock Schoel District (\"NLRSD''l, claiming that ithey had failed in their i affirmative duty to desegregate their schools. Afte-e a long and complicated trial, the district court held that the PCSSD and NLRSD had indeed fallen short of their respective respor-sibilities to desegregate their schools and ' ordered that all three school districts be cqnsolidated. Liti:le vii lt\"Q . {!'4\" $J -i:: . sn.U:,-.,s, 01.s ~~ t;::D 1~-;: Dis ; Hie:+- C(JuRr NO AR.ivwSA.s IN THE UNITED STATES DISTRICT COURTJAMEs V 2 B 2002 EASTERN DISTRICT OF ARKANSAS By: V\\! MccoR1, WESTERN DIVISION i-fACK, CLf:Rk LITTLE ROCK SCHOOL DISTRICT RECEIVED V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL . MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL DEC - 2 2002 OFFICEOF DESEGREGATION MONITORING DEFENDANTS INTERVENORS INTERVENORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR THE VACATING OF ORDERS AND RECUSAL The LRSD for its Response states: 1. Joshua's Motion should be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. 455(a) and (b). 2. The LRSD's memorandum brief in support of this Response is hereby incorporated by reference. WHEREFORE, the LRSD prays that Joshua's Motion be denied; that the LRSD be awarded its costs and attorneys' fees expended herein; and that the LRSD be granted all other just and proper relief to which it may be entitled. F \\HOME\\FENOLEY\\LRSD 200 I \\umtary-rcsponse-mot-reclUc: wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FR1DA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501 - 11 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on November 26, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F\\HOM.E\\FENDLEY\\LRSO 2001\\uniwy.response-mol-rccusc: wpd 3 - - - - - - - - - ---- - - - ----- -- ~#RG,(4,5D IN THE UNITED STATES DISTRICT COURT tsrR,cr~ EASTERN DISTRICT OF ARKANSAS Nov 2 6 \u0026amp;\\s WESTERN DIVISION JAME~ I, .. 2002 By .\\.. M\"r- ,, ,.., LITTLE ROCK SCHOOL DISTRICT -~ ).E~~IFF LJ;,;1::-c~ V. LR-C-82-866 RECEIVED PULASKI COUNTY SPECIAL SCHOOL OEC .. 2. 2002 . DISTRICT NO. 1, ET AL DEFENDANTS Orf\\Ct Of MRS. LORENE JOSHUA, ET AL ltatll\\r',.~\\TlOM MOMllORl1l\u0026amp; JNTER VENO RS KATHERINE KNIGHT, ET AL JNTERVENORS MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR THE VACATING OF ORDERS AND RECUSAL Joshua's Motion should be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. 455(a) and (b). Each of these grounds for denial will be discussed in tum below. A. It is too late for Joshua to seek recusal based on the Court's representation of the Honorable Herny Woods over a decade ago. The Eighth Circuit has consistently held that motions to disqualify pursuant to 28 U.S.C. I 455(a) and (b) must be filed in a timely m~er. Holloway v. United States, 960 F.2d 1348 (8th Cir.1992)( claims under 28 U.S.C. 455 must be made in a timely manner); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407; 1414 (8th Cir.1983) (\"Although 455 does not include an explicit time limitation, we believe that a timeliness requirement is appropriate., ... \"}; United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994) (\"This court has held that claims under 455 'will not be considered unless timely made.' \") (quoting Holloway). Parties are required to apply for recusal \"at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim,\" Apple v. Jewish Hosp. \u0026amp; Medical - Ctr., 829 F.2d 326, 333 (2nd Cir.1987), for two reasons: ( 1) a prompt application affords the district judge an opportunity to assess its merits, and (2) a prompt application avoids the risk that a party is holding back a recusal motion as a fall-back position in the face of an adverse ruling. See In re International Business Machines Corp., 45 F.3d 641,643 (2nd Cir.1995); accord In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir.1995) (\"In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns.\"); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986) (\"Counsel, knowing the facts claimed to support a . 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only after learning the court's ruling on the merits.\"), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987). The latter concern is particularly relevant in a long-standing case such as this. In affirming Judge Woods' decision not to disqualify himself, Judge Richard Arnold wrote: At the outset, we note the irony that most of the major parties to this litigation have at some point sought the removal of the trial judge. Not surprisingly, the parties have generally discovered grounds for disqualification at approximately the same times This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. * * * * -PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., * 4:82CV00866 u.fo1{k,~CQRT EASTERN DISTRICT ARKANSAS OCT O l 2002 JAME~~ l!:ly: ~ 2 - , . Defendants, * * RECEIVED MRS. LOREN JOSHUA, et al., * lntervenors, KATHERINE KNIGHT, et al., lntervenors, * * * * OCT - 3 2002 OFFICE OF DESEGREGATION MONITORING ORDER Attached is a copy of a letter from Mr. Walker dated October 1, 2002. presume it should be treated as a motion of some kind. Accordingly other counsel of record may respond within the time permitted by the Federal Rules of Civil Procedure. IT IS SO ORDERED. Dated this 1st day of October, 2002. THIS DOCUMENT ENTERED ON GOCKET SHt'.:ET !N COMPLIANCE ~vv i1r.~i RMuLi::: 58 AND'C'R~ gr. RCF ,.,, ,,.., ,--.,( ' - - - - - - v. ___ - 0 -- - - - - 6 8 0 JOHN W. WALKER SHAWN CHILDS JOHN W. WALKER, P.A. ATTORNEY AT LAw 1 723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 3743758 FAX (501) 3744187 October 1, 2002 Honorable Judge William R. Wilson United States District Court 600 West Capitol, Suite 423 Little Rock, AR 72201 I Re: Little Rock School v. Pulaski County School Case No. 4:82CV00866 Dear Judge Wilson: OCT - 2 2002 OFACE OF DESEGREGATION MONITORING OF COUNSEL ROBERT McHENRY. P.A. DONNA J. McHENRY 8210 HENDERSON ROAD LITTLE ROCK. ARKANSAS 72210 PHONE: (501) 372-3425 FAX (501) 372-3428 EwuL: mchenryd@swbell.net On page 172 of your Order of September 13, 2002, you determine a compliance remedy with respect to the Joshua Intervenors, Section D. You also require the ODM to monitor LRSD's compliance with Section 2. 7.1. May I bring to your attention that the remedy being imposed is not preceded by any court order determining and defining the parameter of Joshua's monitoring. Those issues were not before the Court. The Court now determines that Joshua must monitor and must immediately bring to the LRSD 's attention all problems that are detected as the court has determined those problems to be. In doing so, the Court seems to impose a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring. I, therefore, would like to request that the Court define the nature of the monitoring that it expects ofJoshua, i.e. access to information by Little Rock, cost of production of such information, access to staff responsible for fulfilling the obligations (must this be done in writing with communication directed to LRSD counsel), and so forth. I believe that it would be appropriate for the Court to spell out the obligations which it now imposes upon Joshua and the legal basis therefor in view of the fact that the remedy defined was not sought by LRSD or any party. I also note that LRSD is not required to inform Joshua of anything set forth on pages 170 through 1 72 except to provide a compliance report on or before March 15, 2004. I must also object to Court's imposing monitoring requirements upon Joshua that were contemplated to be the responsibility of the ODM. The Court's comments indicate that it does not forsee or require a continued responsibility for monitoring of the intensity which the Court of Appeals for the 8th Circuit required. In this respect, we note that the Court created the ODM and expected the ODM to carefully monitor on a daily basis, full-time, the activities of the Little Rock Page 2- Letter to Judge Wilson October 1, 2002 and other school districts. By placing the responsibility that you appear to place on Joshua, unless clarification otherwise provides, the Court is shifting the required monitoring from the ODM to Joshua. We do not believe that to be fair or reasonable. Before your final order is entered, and becomes appealable, I respectfully request a hearing on this matter so that an appropriate record on the issues of the role of ODM monitoring and Joshua monitoring may be fully developed. JWW:js cc: All Counsel of Record Ms. Ann Marshall IN THE UN1TED STATES DISTRJCT COURT EASTERN DISTRJCT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRJCT V. NO.4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERJNE KNIGHT, ET AL RECEIVED OCT - 8 .too2 OFFICE OF DESEGREGATION MONITORING PLAINTIFF'S RESPONSE TO JOSHUA INTERVENORS OCTOBER 1, 2002 LETTER PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS For its response to the Joshua Intervenors' (\"Joshua\") October 1, 2002 letter, Plaintiff Little Rock School District (\"LRSD\") states: 1. For more than decade, Joshua has reported to the Eighth Circuit Court of Appeals and to the District Court that it was engaged in the process of monitoring LRSD's compliance with LRSD's various desegregation obligations. At one oral argument, counsel for Joshua introduced a number of Joshua monitors to the panel of the Court of Appeals. 2. The 1998 Revised Desegregation and Education Plan formalized a process for resolving any desegregation compliance problems which were discovered during the course of Joshua's monitoring. The obvious purpose of that process, which is found beginning at 8.2 of the Revised Plan, was to allow the quick resolution of any compliance issues for the benefit of both the - Joshua class members and the LRSD. 3. There is nothing on page 172 of the Court's September 13, 2002 Order which imposes upon the Joshua Intervenors any obligations which are not contained in the Revised Desegregation and Education Plan or inherent in the class representatives' and class counsel's obligations to the class members. 4. The Court's September 13, 2002 Order followed weeks of litigation about issues which Joshua did not raise with the LRSD during the term of the Revised Plan. By requiring that Joshua and LRSD follow the \"process for raising compliance issues\" set forth in 8.2, et. film. of the Revised Plan, the Court is simply requiring the parties to abide by the terms of their own agreement. 5. TheLRSD can find in the Court's Order no basis for Joshua's argument that the Court has somehow imposed \"a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring.\" The LRSD does not read the Court's Order as \"imposing\" any burden upon either Joshua or the ODM which did not exist for years prior to the Court's Order. 6. The Court should decline Joshua's request \"for the Court to spell out the obligations which it now imposes upon Joshua.\" Nothing is required of Joshua that Joshua should not have been doing all along. The Court has simply let the parties know that in addition to 2.7.1 of the Revised Plan, their agreement with respect to the resolution of compliance issues remains viable. The Court's Order continues a sensible and efficient system for resolving compliance issues and puts Joshua on notice that objections raised for the first time on April 15, 2004 which were not raised pursuant to the compliance process could be subject to an argument that those issues have been waived. 7. The Court should require that any future requests for relief submitted by Joshua should be placed in the form of a Motion and filed pursuant to the Federal Rules of Civil Procedure and the local rules of this Court. WHEREFORE, for the reasons set forth above, Joshua's letter/motion of October 1, 2002 should be denied. Respectfully submitted, LITTLE ROCK SCHOOL DISTRJCT FRJDA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002. Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 P. 0 . Box 17388 Little Rock, AR 72222 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL RECEIVED OCT - 8 2002 OFFICEOF DESEGREGATIO.MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR RECONSIDERATION AND MOTION FOR NEW TRIAL Plaintiff Little Rock School District (hereinafter \"LRSD\") for its Response to Joshua Intervenor's (hereinafter \"Joshua\") Motion for Reconsideration and Motion for New Trial states: The LRSD will respond to each numbered paragraph of Joshua 's Motion for Reconsideration in tum. 1. The Court's use of the term \"supervision\" on page 2 its September 13, 2002, Memorandum Opinion (hereinafter \"Opinion\") was appropriate. It is common for a school district implementing a court ordered desegregation decree to be referred to as being under court \"supervision.\" See Freeman v. Pitts, 503 U.S . 467, 471 (1992)(\"The DCSS has been subject to the supervision and jurisdiction of the United States District Court for the Northern District of Georgia since 1969 . .. \" (emphasis supplied)). The Office of Desegregation Monitoring (\"ODM\") acted under the authority of the Court to supervise the LRSD. 2. Evidence related to Joshua's failure to raise compliance issues during the term of the LRSD's Revised Desegregation and Education Plan (hereinafter \"Revised Plan\") was relevant to the Board's good faith, to assist the Court in interpreting the Revised Plan, and to the Board 's estoppel defense. 3. The ODM works for the Court, and it is entirely appropriate for the Court to define its role and for the Court to take into account the LRSD's position with regard to ex parte contact between the Court and ODM. 4. Joshua cannot blame their failure to come forward with evidence on the Court's focus on \"brevity and substance.\" In any event, Joshua agreed to narrow the issues and the time limits imposed by the Court and cannot now be heard to complain. See Tr. Dec. 11 , 2001 , pp. 36-37. 5. The LRSD denies that footnote 15 on page 9 gives the impression that Joshua counsel have been involved in this case since 1982. The record is clear that Joshua intervened ' only after the LRSD prevailed in this case. While the 1989 Settlement Agreement did also resolve the Clark and Cooper cases, the Court is correct that this is a 20 year-old case. 6. The Court correctly noted that the claims for relief and remedies sought differ in the present case from Clark. Clark was simply a continuation of the Cooper case filed in 1956 asking that \"an injunction be issued against continued segregation of the races in the Little Rock public school system.\" Aaron v. Cooper, 243 F.2d 361 , 362 (8th Cir. 1957). The LRSD filed this case in 1982 seeking consolidation of the three Pulaski County school districts based on interdistrict constitutional violations by the other districts and the State of Arkansas. See LRSD v. PCSSD, 584 F.Supp. 328 (E.D. Ark. 1984). The LRSD denies that either the late Honorable Henry Woods or Special Master Aubrey McCutcheon found that the LRSD continued to unlawfully discriminate against African-American students. 7. The LRSD denies that the information in footnote 47 on pages 26 and 27 is inaccurate. It is entirely appropriate for the Court to evaluate and comment on ODM's productivity. Nothing in the Court's opinion suggests that the Court has violated or intends to violate the Eighth Circuit's mandate. 8. The LRSD denies that the ODM has been in an \"advisory position to the LRSD\" since December 27, 1996. The ODM returned to its monitoring role at the conclusion of the 2 Revised Plan's transition period. See Revised Plan, 10. Nothing in the Court's opinion suggests that counsel for Joshua was to take over the ODM's monitoring responsibilities. Counsel for Joshua was obligated to monitor the LRSD based their ethical duty to their clients and their implied contractual duty to the LRSD. 9. The LRSD denies that the Court's discussion of Joshua's 1996 request for attorneys' fees indicates bias or hostility toward counsel for Joshua, implies collusion between the lawyers, suggests Judge Wright did not know the tenns of the settlement, complains unfairly that a matter on appeal should not be resolved by the parties, suggests that Joshua's counsel agreed to assume the role of ODM, or holds counsel for Joshua to public contempt for being paid. As to counsel for Joshua's attempt to justify the monito.ring fees paid by the LRSD, the LRSD denies that counsel for Joshua attended \"hundreds of meetings\" with school District officials, that counsel for Joshua was ever \"threatened with arrest,\" and that the LRSD revised its policies because of counsels' \"persistence and vigor.\" The LRSD also denies the implication that - counsel for Joshua was responsible for the additional funding the three Pulaski County districts receive from the State by virtue of litigation related to the 1989 Settlement Agreement. While the discussion of professional fees is not directly related to the issues before the Court, the Court was free to include this discussion in its opinion. 10. The LRSD denies that the testimony ofDrs. Walberg and Armor was inapposite to the issues before this Court. Their testimony provides the context in which the LRSD and Joshua agreed to the Revised Plan and the basis on which the Court approved the Revised Plan, both of which are relevant to interpreting Revised Plan 2.7. 11 . The LRSD denies that there is no evidentiary basis for the Court's finding that ODM and Joshua did not object to the LRSD's Interim Compliance Report. Dr. Bonnie Lesley testified to this fact (Tr. Nov. 19, 2001 , p. 287), and it is stated in the introduction to the LRSD's Final Compliance Report (CX 870, p. iv.). 3 12. The LRSD denies that the Court was required to share with the parties any criticisms it had of ODM's June 14, 2000, discipline report. The LRSD's Interim Compliance Report was admitted into evidence as CX 869. The LRSD denies that the issue of discipline was not ripe for objection after the LRSD filed its Interim Compliance Report. Dr. Linda Watson testified that ODM and Joshua were regularly provided copies of the District's Disciplinary Management Reports. See Tr. Nov. 19, 2001, p. 83. 13. The Court is correct that Joshua failed to present any evidence that the LRSD was not in substantial compliance with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement and school construction and closing. Joshua did not present any evidence on these issues:precisely because it abandoned those arguments. See Tr. Dec. 11, 2001 , pp. 36-37. Joshua cannot now be heard to complain that the Court did not allow Joshua to present evidence on those issues. 14. The Court found that Revised Plan 8.2 did not expressly require Joshua to raise compliance issues pursuant to the process set forth therein. See Memorandum Opinion, p. 89. Even so, evidence of Joshua's failure to raise compliance issues was relevant to the Board's good faith, to assist the Court in interpreting the Revised Plan, and to the Board's estoppel defense. The LRSD denies that there was \"much evidence that Joshua regularly brought matters of compliance to the attention of the school district administrators.\" 15. Footnote 2 of the Revised Plan is unambiguous, and the Court correctly interpreted the plain language of the footnote. The LRSD denies that Joshua introduced evidence \"that certain goals were to have been fully met while others would be ongoing.\" 16. The LRSD denies that the Court must presume \"that there is a correlation between student achievement and money expenditures by school districts.\" The LRSD also denies that only conclusion to be drawn from any continuing racial disparity in achievement is that the beneficiaries of desegregation funding have been white students. Joshua's argument ignores the fact that the racial disparity in achievement exists when students arrive for their first day of 4 school. As Drs. Wal berg and Armor explained, it would be impossible for the LRSD to eliminate the racial disparity in achievement given the current racial disparity in socioeconomic status. 17. The LRSD denies that the Court improperly referred to the Green factors. The Revised Plan constituted an agreement voluntarily entered into by the LRSD. The LRSD entered into that agreement because it believed implementation of the Revised Plan was in the best interest of Afucan-American students, and indeed, all students in the District. 18. The Court is correct that in this case the LRSD has never been adjudicated a \"constitutional violator.\" The LRSD denies that it was held in contempt during the implementation of the 1990 settlement plan. 19. The Court correctly interpreted Revised Plan 2. 7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. Joshua sought to use the racial disparity in achievement to establish the LRSD's noncompliance with Revised Plan 2.7, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in achievement and the LRSD's alleged noncompliance. 20. The Court acknowledged that the Revised Plan did not expressly require Joshua to raise an issue pursuant to Revised Plan 8 before it could object to the LRSD's final report. See Memorandum Opinion, p. 89. 21. The LRSD will respond to each subparagraph of paragraph 21 in tum: (a) The Court drew a reasonable inference from the fact that Joshua failed to further pursue these issues and from Baker Kurrus's testimony that he asked Dr. Carnine to work with Joshua to resolve these issues. See Tr. July 24, 2002, p. 751. (b) Dr. Lacey so testified (Tr. July 24, 2002, p. 777), and no \"record of past actions\" is required for the Court to credit the testimony of a witness. ( c) Joshua points to nothing in the \"record\" which would indicate that the Court's characterization is erroneous. 5 (d) In fact, Junious Babbs testified that ODM and Joshua were provided copies of the Compliance Plan and Compliance Handbook.Court. See Tr. July 5, 2001, pp. 73, 77 and 78. Moreover, ODM's August 11 , 1999 report establishes that ODM received both. See pp. 39 and 40. Counsel's suggestion on cross-examination that Joshua did not receive them is not evidence. See Eight Circuit Model Jury Instructions (Civil) 1.02 (2001). Thus, the only evidence before the Court was testimony that ODM and Joshua did receive the Compliance Plan and Compliance Handbook. (e) The record in this case includes motions by the LRSD after Joshua filed its objections to stop counsel for Joshua from entering the offices of LRSD staff members unexpectedly and from using the Freedom of Information Act (\"FOIA\") to conduct discovery. Joshua's opposition to these motions provides ample support in the record for the Court's finding. (f) The Revised Plan did not prohibit the LRSD from holding meetings without Joshua being present. Thus, there was no \"failure\" for the Court to excuse. (g) The Court correctly found that Revised Plan 2.5 did not require the LRSD to eliminate or reduce the racial disparity in discipline. (h) The criticisms offered by the Court were readily apparent from the report itself, and Joshua cannot blame the Court for failing to put it on notice of these shortcomings. (i) The suspension index is a well-recognized statistic and has been explained in numerous desegregation cases. See, li, Hoots v. Pennsylvania, 118 F.Supp.2d 577, 608 n.25 (W.D. Pa. 2000). The Court was free to accept the LRSD's calculations which were admitted into evidence without objection. See CX 743 . (j) The Court correctly interpreted Revised Plan 2.5 as not requiring the LRSD to eliminate or reduce the racial disparity in discipline. Joshua sought to use the racial disparity in discipline to establish the LRSD's noncompliance with Revised Plan 6 2.5, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in discipline and the LRSD's alleged noncompliance. (k) The Court correctly noted that not a single student testified that he or she had been discriminated against in the imposition of discipline. The LRSD fails to see how the Court's admonition not to present cumulative evidence prevented Joshua from calling any students to testify during the hearings on Revised Plan 2.5 . (I) The Court's description of Dr. Watson's testimony is accurate given the ' context in which the statement was made. (m) The fact that African-American teachers suspended African-American students more than white teachers is not \"a finding ofracial mistreatment by AfricanAmerican teachers toward African-American students.\" (n) The Court's statement that \"students of all races tend to gravitate toward sports that they have grown up playing and that they enjoy'' does not condone racial disparities in activities. ( o) The only inference to be drawn from testimony of Ray Gillespie is that the LRSD responded appropriately when confronted with allegations that white coaches mistreated African-American student athletes. (p) The Court did not accept a \"means\" test for participation in activities. The LRSD presented evidence of the steps it took to ensure that no student was denied participation in an activity due to a financial barrier, and Joshua came forward with no evidence that a single student was denied participation in an activity because of a financial barrier. ( q) The Revised Plan did not require the LRSD to eliminate or reduce the racial disparity in the percentage of students taking AP courses. The LRSD has worked hard to increase the number of African-American students in AP courses, and it has done 7 so. The LRSD's success cannot be diminished by Joshua characterizing the LRSD's efforts as \"minuscule.\" (r) The Court gave due weight to the testimony of Jason Mercer and Ramona Horton. (s) The Court did not accept a \"means\" test for participation in the University Studies Program at Hall High School. It is true that Dr. Lacey did not identify the race of the student for whom a private donation was sought so the student could participate in the University Studies Program. See Tr. July 24, 2002, p. 802. However, it was reasonable for the Court to infer that the student was African-American for two reasons. First, when counsel for Joshua began this series of questions, he limited the question to AfricanAmerican students. See Tr. July 24, 2002, p. 801. Second, there was evidence that African-American students were more likely to be poor, and therefore, to be excluded by financial barriers to activities. See Tr. July 24, 2002, p. 602 and 624. (t) (u) The Court gave due weight to Ms. Watson's testimony. The Court correctly interpreted Revised Plan 2.7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. (v) The Court may infer that counsel for Joshua read Revised Plan 2. 7 before agreeing to it, and therefore, knew what it required. (w) The Court is correct that Joshua did not raise the issue of the LRSD's March 19, 2001, agreement with the State of Arkansas in its Opposition to the LRSD's Motion for an Immediate Declaration of Unitary Status filed May 30, 2002. WHEREFORE, the LRSD prays that Joshua's Motion for Reconsideration; that Joshua's Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order be denied; that the LRSD be awarded its costs and attorneys' fees expended herein; and that the LRSD be awarded all other just and proper relief to which it may be entitled. 8 F:\\HOME\\FENDLEY\\l..RSD 200 1\\unitary-rcsponsc-mot-rcconsider.wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRJDA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 37 -\"1LM-+---- 9 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\\J-IOME\\FENDLEY\\LRSD 2001 \\uni1ary-rcsporuc-mot-rccoruidcr wpd 10 : - JOHN W. WALKER, P.A. A't'TORNEY AT I.Aw 1723 l3RoADWAY Lrrru: RoCK, .AluWlsAS 7.2206 TE.t.EPRONE (501) 374-3758 FAX (501) 374-4187 JOHNW. WALKER SHAWN CHILDS OFCOUNsEL ROBERT Mc~1.~ DONNAJ. M=t 8210 liENtll!RSON BaAn Ll1't1.P. Roel[, .AiKANSAS 72210 l'BONE: (601) 572-8426 FAX (501) 372,.8428 EMan.: mchen:ryd@nrbell.net Honorable William R.Wilson United States District Judge 600 W. Capitol Suite 149 Little Rock, Arkansas 72201 Re: LRSD v. PCSSD Dear Judge Wilson: Via Facsimile: 604-5149 October 9, 2002 Tius is a supplement to my letter motion of October 1,2002. I appreciate the Court treating it as a motion, although I did not so couch it, and I believe that the appropriate action taken by the Court in inviting the parties to react will be most useful. 1 believe that it is important for me to specify, however, what Joshua believes it would be appropriate for the Court to do with respect to clarifying the monitoring role of the Office of Desegregation Monitoring. I am therefore asking that the Court conduct a hearing: ( a) to identify the instructions received by the Office of Desegregation. Monitoring (later referred as the ODM) regarding monitoring and reporting in reference to the LRSD's Motion for Unitary Status; (b) to consider whether the instructions received by the ODM were consistentmth the earlier identification ofODM's role as setfonh by the Court of Appeals for the Eighth Circuit; and ( c) to identify with greater particularity ODM' s monitoring and reporting role regarding the three school districts, If the Court is inclined to have me fonnalize my October 1, 2002 letter and today's letter in motion form, I will be happy to do so. I am also writing to observe that the Joshua Intervenors filed a Motion for Reconsideration within the time allowed by law and that there has no response filed by either party within the rule time to our motion. Local Rule 7.2(b) requires that any party opposing our motion shall file such motion within eleven days. By my count, any opposing party should have filed its opposition not later th.an October 4, 2002. Today is obviously October 9, 2002. I am nor aware that the Court has a received a Motion to Extend the Time and I have not had a request from any counsel regarding an extension of such time. Page Two October 9, 2002 Accordmgly, we request that the Court role on the motion. JWW:lp cc: All Counsel of Record Ms. Ann Marshall Brown i _-t.ttorne-; at Law 17ZJ Broadwcry Ltrrle Roa:; _4.J-!car..sr::s 72206 Telephone (501) 374-3758 .Fzc (501) 37-~ '.' 187 F/4,X TR.-4.L\"'iSlY.!ISSION CO\"y'ER SEEET Da:i2: [ To: [ Fa..-c: l __ 3. c-..\u0026lt;-2 ...... r- d)-.:-.LJ_c_JP __ __,1 Re: ,. l Sender: [_= =g,;===luY-==========; YOU SHOu2D R.ECE.TVE [_ _ (including cover sheer)] P.:!..GE(S), fl'ICLUDING l'F..JS CO VER. S,--:.r;;''f:T. IF YOU DO NOT RECEIVE ALL THE PAGES, P LE...:JSE CJ.LL \"\u0026lt;(501) 374-3758\u0026gt;\" The information coma.ineciin !his ~;mile meo:sage is atto:r-ey privilege:i and conficientfaJ. information intended only for the use of .b.e in.diviriual or en.rit-; nmned. above. If tile ruder of this m~sage is il.Ot tb.e intended recipient, or me ~ployee or agen, res-ponsibie to de.!iver it ro 1:le intended recipient, you sre b.ereoy .iotiiied ilint any cfuse:nination, di.'\"ll'founon or cop;1ing of cbis COIIlllluuication is stric:tiy prohiliii:ed. If you bave received. ihis commi'tni.c:icon in error, ple!:l!e immediate notify u.s by wlephoiie, md rerura the onginal messagi: .a J.l.:'J at the above address via .lie U.S. Postal s~:--lic:. Tilanic you. R CEIVED EAST~Rs~l~~e~~s s - CT 12 2002 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS OCT 1 1 2002 AO 72A (Rev.8/82) OFFICE OF LITTLE ROCK DIVISION JAMES W. DES REGATION MONITORING By: __~ ~~~.,..,J... ..... LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS On September 24, 2002, Joshua lntervenors (\"Joshua\") filed: (a) a Substituted Motion for Reconsideration (docket no. 3678), 1 which asks me to revisit many aspects of the September 13, 2002 Memorandum Opinion (docket no. 3675) (\"Memorandum Opinion\") declaring the Little Rock School District (\"LRSD\") to be unitary with regard to all aspects ofits operations under the Revised Plan (CX 871 ), except for 2.7.1; and (b) a Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order ( docket no. 3677). On October 7, 2002, LRSD filed a Response to Joshua Intervenors ' Substituted Motion for Reconsideration and Motion for New 1On September 23, 2002, Joshua filed their first Motion for Reconsideration (docket no. 3676), which contained numerous errors. The next day, September 24, 2002, Joshua filed a second Motion for Reconsideration, which corrected most of those errors. I will consider this second motion as a Substituted Motion for Reconsideration, although it was not so designated. As a matter of fact, a motion for reconsideration is not recognized in the Federal Rules of Civil Procedure. They are, however, commonly filed and ruled upon in this jurisdiction--and I will hew to this custom. 3 6 8 4 AO 72A (Rev.8/82) Trial (docket no. 3682).2 After an initial review of Joshua's Substituted Motion for Reconsideration and Motion for New Trial, I considered summarily denying both motions on the ground that each of the arguments in support of reconsideration or a new trial is without any apparent merit. I believe that my 17 4-page Memorandum Opinion fully and accurately sets forth the relevant history of this case and that my detailed Findings of Fact and Conclusions of Law are amply supported by the record and controlling legal authority. In short, I have given this case my best shot, and, if counsel for Joshua believe I have erred, they should ~ppeal my decision to the Court of Appeals for the Eighth Circuit. Thus, on the merits, Joshua's arguments raise nothing that warrants comment beyond my stating I find they are without any factual support or legal foundation. However, to the extent that a number of Joshua's arguments tend to torque the Memorandum Opinion out of shape, and are supported only by speculation and personal innuendo, I think it best to set the record straight. First, Joshua suggests that I improperly \"faulted\" Joshua for failing to present evidence 2Under Rule 7 .2(b) of the Local Rules, LRSD's Response to Joshua's Substituted Motion for Reconsideration was due eleven days from September 24, 2002, and its Response to Joshua's Motion for a New Trial was due eleven days from September 23, 2002. Because Joshua's Substituted Motion for Reconsideration and Motion for New Trial were served on counsel for LRSD pursuant to Fed. R. Civ. P. 5(b)(2)(B) (mail) and (D) (electronic means), an additional three days must be added to LRSD's eleven days. See Fed. R. Civ. P. 6(e). Thus, LRSD had fourteen days to respond to those motions, making its Response to Joshua's Motion for New Trial due on or before October 7 and its Response to Joshua's Substituted Motion for Reconsideration due on or before October 8. As indicated previously, LRSD filed its Response to both those Motions on October 7. In a letter dated October 9, 2002, Joshua's counsel asked me to strike LRSD's Response to those two motions because it was not filed within eleven days. Because Joshua's counsel overlooked Fed. R. Civ. P. S(b) and 6( e ), they miscalculated the deadline for the filing of LRSD 's Response to be October 4. Therefore, their request to strike that Response is denied. -2- A072A (Rev.8/82) on the March 19, 2001 Agreement between LRSD and the Arkansas Department of Education (CX 548). Substituted Motion for Reconsideration at 2. To the contrary, the Findings of Fact explicitly state that: The March 19, 2001 Agreement between the ADE and LRSD is unrelated to the question of whether LRSD has substantially complied with its obligations under the Revised Plan. It is important, too, that Joshua did not raise that issue as part ofits challenge to LRSD's request for an immediate declaration ofunitary status. Memorandum Opinion at 149, ,1 17 ( emphasis in original). Thus, although Joshua introduced CX 548 into evidence,3 I expressly did not consider it in deciding the unrelated question of whether LRSD had substantially complied with its obligatio.ris under the Revised Plan. Nowhere in my Memorandum Opinion do I \"fault\" Joshua for failing to produce evidence regarding the March 19, 200 l Agreement between LRSD and ADE--a subject that clearly was not before me in the hearings on unitary status. Second, Joshua contends that I should not have addressed \"the involvement of the ODM with respect to issues which were litigated before Judge Wright and Judge Wilson . . . [because] the competence of the ODM, the quality of the ODM reports, [and] the budget of the ODM .. . were not before the Court in evidentiary form .'\"' Substituted Motion for Reconsideration at 2, 6-7, and 10. The ODM, an employee of the district court, has monitored LRSD's compliance 3It strikes me as a little strange that Joshua introduced the March 19, 2001 Agreement into evidence during the hearing on unitary status and now argues, in their Substituted Motion for Reconsideration, that the document is irrelevant to the question of whether LRSD substantially complied with its obligations under the Revised Plan. I agree that the document is irrelevant to the issue of substantial compliance, but this begs the question of why Joshua chose to introduce the document into evidence in the first place. I remain puzzled. 4For the record, my Memorandum Opinion does not consider \"the competence of the ODM.\" -3- A072A (Rev.8/82) with its obligations under the 1990 Settlement Agreement, the 1992 Desegregation Plan, and the Revised Plan. Because the ODM works for the court, all of its budgets, as well as all of the reports it has prepared over the years, have been filed and are part of the record in this case. Historically, all of the parties and the court have used ODM reports, to the extent they were relevant, during the many hearings that have taken place since 1991. After being assigned this case in January of 2002, I carefully reviewed the entire record. In doing so, I examined the ODM 's annual budgets from 1990 to date. I was troubled by the large increases in the OD M's budget over that period of time. I was also troubled by the large sums of money that I discovered had been paid to the attorneys for both Joshua and the three school di stricts.5 While attorneys are unquestionably necessary in school desegregation cases, it is the school children who ultimately are disadvantaged by unnecessary or exorbitantly high litigation costs. Thus, I believe that it was entirely appropriate for me to express my views on the ODM's rapidly escalating budgets,6 which are part of the record in this case, and the total amount of money that has been paid to all of the attorneys in this case during the last ten to fifteen years. As footnote 58 makes clear, my concern is with the enormous amount of money that has been paid to the entire professional group--the ODM, the attorneys for LRSD, PCS SD, NLRSD, and Joshua. As I thought my admonition made clear on page 44 of the Memorandum Opinion, I believe the issue of the money paid to the professional group is important because \"I understand the meaning of being careful with a dollar, and I expect the professional group to keep that 51n most long-running school desegregation cases that have been decided in the last ten years, courts have expressed dismay over the high cost of school litigation. I now know why. 6See Memorandum Opinion at 26-27. -4- A072A (Rev.8/82_) _ important point fixed in their minds from here on out.\" Why Joshua's counsel seriously contend that I should not have addressed a subject of such obvious importance is beyond me. In the same vein, Joshua's counsel argue that I should not have commented on the quality of the ODM's June 14, 2000 Report of Disciplinary Sanctions in LRSD (docket no. 3366). Joshua's counsel used that Report extensively in his examination of various LRSD employees who testified during the hearings on unitary status. Joshua's decision to use that Report, one of the Court 's own documents, in his examination of witnesses on the issue of student discipline, required me to read and carefully analyze that do~ument. In doing so, I discovered patent deficiencies which rendered the Report of little use to the court or the parties in trying to determine the cause for African-American students being over-represented in disciplinary proceedings. Thus, in my discussion of the history of this litigation (Memorandum Opinion at 47-50), I was obliged to point out the flaws in the ODM's Report of Disciplinary Sanctions. I note that Joshua does not deny those flaws--they simply object to my noting them. In my Findings of Fact on the issue of student discipline, I again commented on the OD M's Report of Disciplinary Sanctions, which was prepared for the express purpose of being used by the court in monitoring and evaluating LRSD's compliance with the Revised Plan. In light of that fact, I believe I would have been remiss ifI had not closely scrutinfaed the ODM's Report in deciding whether LRSD had substantially complied with those sections of the Revised Plan dealing with student discipline. Otherwise, what is the role of the Judge? Finally, and perhaps most importantly on this point, none of my Findings of Fact on the issue of whether LRSD substantially complied with its obligations regarding student discipline were based on anything contained in the OD M's Report of Disciplinary Sanctions. Rather, my -5- AO 72A (Rev.8/82 findings simply pointed out that, because the Report failed to develop a proper statistical model for evaluating the data on student discipline, its conclusions were based on pure speculation-making the Report of no use to the court or the parties in evaluating the cause for AfricanAmerican students in LRSD receiving a disproportionate number of suspensions. See Memorandum Opinion at 105-07, ,i,i 24-26. Third, Joshua's counsel take general exception to my discussion of the attorneys' fees that have been paid in this case during the last twenty years and particular exception to my allegedly erroneous finding \"that the Joshua counsel, including the Legal Defense Fund counsel, were paid more than $3,750,000 for their work between 1987 and the present time.\" Substituted Motion for Reconsideration at 3. The amount that Joshua's counsel have been paid, to date, in attorneys ' fees is a matter of public record. As pointed out in footnote 58 of my Memorandum Opinion, these attorneys' fees are as follows: $3,150,000 paid to Joshua's counsel under the 1990 Settlement Agreement;7 $700,000 paid by LRSD to Joshua's counsel for monitoring work performed after December 12, 1990, and before July 1, 1998 (see Exhibit 7 to docket no. 3581 ); and $124,861 paid by LRSD to Joshua's counsel for monitoring work performed under the Revised Plan between July 1, 1998, and January 2001 (see Exhibit 8 to docket no. 3581 ). Thus, based entirely on the evidence in the record, without any need for me to speculate or make assumptions, Joshua's counsel have been paid, to date, $3,974,861 in attorneys' fees--this is more than $3,750,000. In footnote 58 of my Memorandum Opinion, I hazard what I admit to be a \"guess\" that, since 1990, the attorneys ' fees that LRSD, PCS SD, and NLRSD have paid to their own attorneys 7LRSD v. PCSSD, 921 F.2d 1371 , 1390 (8th Cir. 1990). -6- AO 72A - ~(Rev.8/82) \"totals at least $4,000,000.\" Joshua's counsel clearly lack standing to complain about my \"guess\" regarding the aggregate amount of attorneys ' fees paid to counsel for the three school districts--an estimate that LRSD has not challenged. In light of these undisputed facts, I seriously question how Joshua's counsel can make the statement that \"counsel Walker does not accept the court's conclusion that he has directly benefitted from the perpetuation of this case.\" Substituted Motion for Reconsideration at 9. With all due respect to Mr. Walker, I am having a hard time escaping the conclusion that he has been \"directly benefitted\" by receiving millions of dollars in attorneys' fees in this case. Fourth, Joshua's counsel, without citing any supporting facts, accuse me of \"a predisposition which could only have come from previous attitudes regarding the role oflawyers in this long-standing case\";8 \"negative attitudes toward lawyers who are involved with and associated with this case\";9 and \"a bias or hostility toward Joshua's counsel.\"10 Although this should go without saying, I want to remind Joshua's counsel that, while I ruled against them on five of the six arguments they advanced, this does not mean that I harbor any bias against or hostility toward them. 11 For the record, I have no \"predispositions,\" \"negative attitudes,\" or \"bias or hostility\" toward Joshua's counsel. I did indeed express dismay over the attorneys' fees that have been paid to all of the 8Motion for Reconsideration at 2. 9Motion for Reconsideration at 3. 10Motion for Reconsideration at 7. 11\"The Judge must not like me\" is a refrain usually sung by lawyers who have just been called to the bar--when a lawsuit doesn't tum out exactly as they had wanted. Experienced lawyers generally resist the temptation to raise this claim. -7- A072A (Rev.8/82) attorneys in this case--! believe that was a subject that called for comment during my discussion of the long history of this case. Likewise, the concerns I expressed about LRSD's decision to pay Joshua's counsel $700,000 for performing monitoring work for which Judge Wright ruled Joshua's counsel had already been paid ( docket no. 2821) and the $48,333.33 per year that LRSD agreed to pay Joshua's counsel for performing monitoring work under the Revised Plan are directly supported by detailed citations to the record 12--not speculation or conjecture--and also deserved to be mentioned in my review of the history of this case. As I stated in the Memorandum Opinion, counsel for both LRSD an,d Joshua should have done a better job of documenting the reasons for the payment of these attorneys' fees and the precise role of Joshua's counsel in receiving monthly payments from LRSD to monitor its compliance with the Revised Plan. However, in reaching that conclusion, I was guided entirely by the plain facts contained in the record and not by any \"preconceived ideas\" or a \"bias or hostility toward Joshua's counsel.\" Fifth, Joshua argues that: (a) because I discuss the fact that the OD M's staff and budget have more than doubled since its creation, I am implicitly criticizing \"Judge Wright's actions and the Court of Appeals for requiring the creation of the office in the first place\"; 13 (b) I \"may be I signaling that [I] want to end the role of the ODM as that role was established and created by the Eighth Circuit\"; 14 and ( c) I may be trying to infer that \"Joshua take over the roie of ODM with respect to monitoring at a rate of approximately $49,000 per year.\" 15 No one could fairly read the 12See Memorandum Opinion at 33-35 and 38-44. 13Motion for Reconsideration at 6. 14Motion for Reconsideration at 7. 15Motion for Reconsideration at 7. -8- A072A (Rev.8/82) Memorandum Opinion as stating anything within shouting distance of these three farfetched notions. As I repeatedly noted in my Memorandum Opinion, Judge Wright did an outstandingjob of presiding over this case for eleven long years, during which time she faithfully and skillfully decided well over a thousand motions. Nowhere do I implicitly or explicitly direct any criticism toward her. 16 Likewise, my Memorandum Opinion makes it clear that I believe it was a good idea for the Eighth Circuit to create the ODM so that the district court and the Eighth Circuit could ensure \\. that each of the three school districts complied with their many desegregation obligations. Obviously, it is important for the ODM to continue its monitoring work until each of the three school districts is declared to be unitary and released from further supervision by the court. At this point, my only concern is that the ODM operate as frugally and efficiently as possible in going forward with its monitoring of the now much less onerous single remaining compliance issue for LRSD and the desegregation obligations that remain in effect for NLRSD and PCS SD. Finally, Joshua's counsel are absolutely correct that, in my Memorandum Opinion, there \"surely cannot be an inference that Joshua was [to] take over the role of ODM with respect to monitoring at a rate of approximately $49,000 per year ... . \" There is no such \"inference\" or \"implication.\" Sixth, Joshua argues that they should be allowed to present additional evidence ofLRSD' s alleged noncompliance with other sections of the Revised Plan. Substituted Motion for Reconsideration at 10-11. In support of this argument, Joshua alleges that \"the court previously 161 do not understand how counsel can possibly discern (or divine) any such criticism in the Memorandum. -9- AO 72A (Rev.8/82) instructed Joshua not to present any of that evidence [on LRSD's alleged failure to substantially comply with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing].\" This is not true. It is an after-the-fact assertion. On May 9, 2002, I entered an Order (docket no. 3598) explaining in detail how I intended to proceed in conducting up to five days of hearings on the remaining issues Joshua had raised in their challenge to LRSD's request for unitary status. Four pages of that Order were devoted to discussing what transpired during the December l l., 2001 hearing before Judge Wright, which was held to discuss the remaining grounds for Joshua's challenge to LRSD's substantial compliance with the Revised Plan. Id. at 9-12. The May 9 Order pointed out that, during the December 11 hearing, Joshua's counsel attempted to raise numerous new grounds for challenging LRSD 's alleged noncompliance after they had rested their case on what they viewed as their three strongest grounds--lack of good faith, failure to comply with obligations related to AfricanAmerican achievement, and student discipline. Judge Wright ruled that Joshua could present evidence on three remaining grounds for noncompliance: advanced placement courses; guidance counseling; and extracurricular activities. In addition, she ruled Joshua could present additional evidence of LRSD's alleged lack of good faith, but only to the extent that evidence was related to advanced placement courses, guidance counseling, and extracurricular activities. Judge Wright also made it clear that, after she had heard the evidence on these three remaining areas of alleged noncompliance, she would decide the question of unitary status. Joshua's counsel responded: \"That 's fin e, Your Honor.\" (Docket no. 3597 at 36-37.) Consistent with Judge Wright's ruling during the December 11 , 2001 hearing, the May 9 -10- A072A (Rev.8/82) Order provided that I planned to conduct up to five days of additional hearings on unitary status, during which Joshua would be allowed to present evidence of LRSD's alleged noncompliance with its obligations related to advanced placement courses, guidance counseling, and extracurricular activities. In addition, I allowed Joshua to present noncumulative evidence related to: (a) LRSD's lack of good faith, but only to the extent that it was related to advanced placement courses, guidance counseling, and extracurricular activities; and (b) how LRSD 's alleged failure to comply with its obligations regarding advanced placement, guidance counseling, and extracurricular activities adversely affected the aca~emic achievement of African-American students (docket no. 3598 at 13-14). I hardly see how the May 9 Order could have been any clearer in setting forth the precise ground rules regarding Joshua's three remaining challenges to LRSD's substantial compliance with the Revised Plan. Joshua's counsel raised no objection to the May 9 Order, and, after completing three additional days of evidentiary hearings on July 22-24, 2002, Joshua's counsel rested their case challenging whether LRSD should be declared unitary. Under these circumstances, there is no basis for Joshua's counsel to argue that the court \"instructed\" them not to present evidence ofLRSD 's alleged noncompliance with numerous other provisions of the Revised Plan. Joshua's counsel agreed, flat footedly, to the ground rules for conducting the hearings on unitary status, including the six specific areas of the Revised Plan under which they challenged LRSD's substantial compliance. It is far too late for Joshua to argue that they should be allowed to engage in piecemeal litigation by raising additional grounds for attacking LRSD's substantial compliance with the Revised Plan. Again--one last time--the grounds delineated by Judge Wright and me, and agreed to by all counsel, were fully litigated. -11- AO 72A (Rev.8/82) I do not know how to put it any more plainly than that. IT IS THEREFORE ORDERED that Joshua's Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Joshua's Motion for a New Trial or in the Alternative Motion for Relief from Judgment or Order be and it is hereby DENIED. nf DATED this day // of October, 2002. -12- /)J v_J ~ . ~ L!l UNITED STATES DISTRICTJU~ THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH tULE 58 AND/OR 79(a) FRC ON 10 I 1 / o 2.. BY D ~VI , () AO 72A (Rev.8/82) ECEIVEf OCT 1 2 2002 OFRCE GfSEGREGATtnN ;\\\\'.: lilTGRING EAsrM~l~~gl!2b IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS OCT 1 1 2002 LITTLE ROCK DIVISION JAMES W. Mc By: A K LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTER VEN ORS In a letter dated and delivered to me on October 1, 2002, counsel for Joshua requested that I modify or clarify: ( a) various aspects of the compliance remedy contained in the September 13, 2002 Memorandum Opinion (the \"Memorandum Opinion\") declaring LRSD to be partially unitary; and (b) the role of Joshua and the ODM in performing future monitoring work in this case. Later that day, I entered an Order ( docket no. 3680), stating that I intended to :treat the letter as \"a motion of some kind.\"1 In a letter dated October 9, 2002, counsel for Joshua wrote me a \"supplement\" to their October 1, 2002 letter. Attached to this Order is a copy of the October 9 letter. On October 7, 2002, LRSD filed its Response to Joshua's October 1, 2002 letter (docket no. 3681 ). Because I see no reason to await LRSD's Response to the matters raised in Joshua's 1A copy of the October 1 letter is attached to my Ord~r. A072A (Rev.8/82) October 9 letter, I will proceed to address the merits of the reliefrequested by Joshua's counsel in both of those letters. As a threshold matter, I want to clarify how I view these two letters. On September 24, 2002, Joshua filed a Substituted Motion for Reconsideration (docket no. 3678) requesting that I clarify or modify many aspects of the Memorandum Opinion. Because both of Joshua's letters are seeking reconsideration of still other aspects of the Memorandum Opinion, I will treat those letters as a \"Supplement\" to their Substituted Motion for Reconsideration and address in this Order only those arguments raised in that \"Supplement.\"2 In the future, I think it will be best if all counsel file motions--not letters--raising any issues that they believe require my attention. I should not be copied on general correspondence amongst counsel. First, Joshua's counsel request that I clarify the monitoring obligations the Memorandum Opinion imposed on them with regard to LRSD's compliance with 2.7.1 of the Revised Plan. I shall do so. In 1990, Joshua's counsel made the commitment to participate in a monitoring system to ensure that LRSD, NLRSD, and PCS SD complied with their desegregation obligations under the 1990 Settlement Agreement. See Memorandum Opinion at 34. Later, in approving that Settlement Agreement, the Eighth Circuit recognized that counsel for Joshua were \"the best defenders and guardians of the interests of their own clients.\" LRSD v. PCSSD, 921 F.2d 1371, 1386 (8th Cir. 1990). Between 1990 and 1998, Joshua's counsel participated in monitoring 2In a companion Order that I am entering contemporaneously with this Order, I have addressed and rejected the arguments raised by Joshua in their Substituted Motion for Reconsideration. -2- A072A (Rev.8/82) LRSD's compliance with the 1990 Settlement Agreement and the 1992 Desegregation Plan.3 After Joshua and LRSD implemented the Revised Plan in 1998, Joshua's counsel entered into an agreement with LRSD to monitor its compliance with the Revised Plan, a task for which LRSD agreed to pay Joshua's counsel $48,333.33 per year.4 Thus, for the last twelve years, Joshua's counsel have been involved with monitoring LRSD's compliance with its desegregation obligations . . In Section VII.A., B., and C. of the Memorandum Opinion, I outlined the Compliance Remedy LRSD must implement in order to comply with its remaining obligations under 2. 7. l of the Revised Plan. Because I believe that Joshua's counsel have an ethical obligation and professional duty to monitor LRSD's compliance with its obligations under 2. 7. l , I provided a monitoring role for them in Section VII.D of the Memorandum Opinion. I intended for Joshua's counsel to continue to perform their monitoring role according to the same procedure they and LRSD have followed for many years in this case. One could read the October 1, 2002 letter as suggesting that Joshua's counsel only intend to continue to monitor LRSD's compliance with 2.7.1 of the Revised Plan if they are ordered to do so by me. I do not believe I can force Joshua's counsel to perform monitoring duties--something that I may have mistakenly assumed they wanted to continue to do. I will leave it up to Joshua's counsel to decide if they have an ethical duty and professional obligation to 3Judge Wright ruled Joshua's counsel were not entitled to receive attorney's fees for any monitoring work performed after the Eighth Circuit's approval of the 1990 Settlement Agreement (docket no. 2821). While that ruling was on appeal to the Eighth Circuit, LRSD voluntarily agreed to pay Joshua's counsel $700,000 forperformingthatmonitoringwork. See Memorandum Opinion at 33-35 and 38-44. 4See Memorandum Opinion at 42. -3- AO 72A (Rev.8/82) continue monitoring LRSD's compliance with its sole remaining obligation under the Revised Plan. I hope Joshua's counsel resolve that question in favor of continuing their long-standing commitment to monitoring LRSD's compliance with its desegregation obligations. However, since they complain about my expressly directing them to continue monitoring LRSD's compliance with 2. 7 .1 of the Revised Plan--something I never expected to hear--I believe I must now modify Section VII.D. of the Memorandum Opinion to read as follows: Joshua may monitor LRSD 's compliance with 2. 7 .1 and, if they choose to do so, they should bring to the attention of LRSD, on a timely basis, all problems that are detected in its compliance with its obligations under 2.7.1, as those obligations are spelled out in this Complianc'f: Remedy. Thereafter, Joshua and LRSD must use the \"process for raising corripliance issues\" set forth in 8.2, et seq., of the Revised Plan to attempt to resolve those compliance issues. If those efforts are unsuccessful, Joshua shall present the issues to me for resolution, as required by 8.2.5. Any such presentation must be timely. Regardless of whether Joshua's counsel continue to monitor LRSD's compliance with 2. 7 .1, the ODM staff most certainly will continue their close monitoring ofLRSD 's compliance with that section of the Revi_sed Plan. I have every confidence that the staff of the ODM will carefully monitor LRSD's implementation of the Compliance Remedy I have ordered under 2.7.1 of the Revised Plan. If Joshua's counsel decide to continue with their monitoring role, which is independent from the monitoring work performed by the ODM, the preceding paragraphs of this Order make it clear that I expect them to follow the same monitoring practices they have followed for years in this case. I expect counsel for Joshua and LRSD to cooperate and work together to ensure that things go smoothly with regard to monitoring LRSD's implementation of its obligations under 2. 7 .1. However, if actual disputes arise regarding monitoring, I will be available to resolve them. -4- A072A (Aev.8/82) Second, Joshua's counsel makes an unsupportable and speculative statement that certain unspecified\"comments\" in the Memorandum Opinion \"indicated that [I] do not foresee orrequire a continued responsibility for monitoring of the intensity which the Court of Appeals for the Eighth Circuit required.\" This assertion simply is not true. I will expect and require the ODM staff to work hard every day to ensure that all three school districts fully comply with all of their remaining desegregation obligations. Of course, for LRSD, these obligations are now far less onerous than they have been in the past. Likewise, NLRSD has already been declared unitary with regard to several ofits original desegregation obligations. In other words, while I will expect ' and require the ODM staff to diligently and fully discharge their obligation to monitor the three school districts, the reality is they now have far fewer obligations. Finally, in Joshua's counsel's October 9, 2002 letter, they request that I conduct a hearing to clarify the role of the ODM. I find there is no need for any requested clarification of the role of the ODM--much less for a hearing on that subject. I feature myself capable of directing the ODM staff in performing their ongoing duties as monitors. IfI waiver in this belief, I may, at that time, call on counsel for suggestions. Of course, if Joshua's counsel determines that the ODM staff is not adequately discharging its monitoring duties, I would expect them to immediately file an appropriate motion. In closing, let me repeat the comment I made in my companion Order addressing the merits of the arguments made by Joshua in their Substituted Motion for Reconsideration: \"I have given this case my best shot, and, if counsel for Joshua or LRSD believe that I have erred, they should appeal my decision to the Court of Appeals for the Eighth Circuit.\" No more paper should -5- A072A (Rev.8/82) be wasted in asking me to reconsider aspects of my September 13 Memorandum Opinion or to clarify roles or responsibilities associated with the Compliance Remedy. That's myrulin'. If any party perceives error, that party should get its best hold and go to the Eighth Circuit. IT IS THEREFORE ORDERED that Joshua's Supplement to their Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Section VI.D. of the Memorandum Opinion is modified to read as set forth, supra, at 4. TM DATED this day / ( of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 7~ ON IO '\" l Q-Z... gy_j-\"\"'-=;~,,,__,_~- -6- JOHNW. WALKER SHAWN CHILDS Honorable William R.Wilson United States District Judge 600 W. Capitol Suite 149 Little Rock, Arkansas 72201 Re: LRSD v. PCSSD Dear Judge Wilson: JOHN W. WALKER, P.A. ATTORNEY AT LAw 1723 l3RaADWAY Lrrru: RoCK, .Aluw.SAS 7.2206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsimile: 604-SJ 49 October 9, 2002 0FCOtlNsEL ROBERT M~,'!..~ DONNAJ.M=r 8210 liENi\u0026gt;KRSON Ra.\\n Ll'rrl.P. Ro~ AIKANSAs 72210 PHONE: (501) 872-8426 FAX (501) 372-8428 EMAn.: mcliemyd@s1rbell.net Tiris is a supplement to my letter motion of October 1,2002. I appreciate the Court treating it as a motion, although I did not so couch it, and I believe that the appropriate action taken by the Court in inviting the parties to react will be most useful. I believe that it is important for me to specify, however, what Joshua believes it would be appropriate for the Court to do with respect to clarifying the monitoring role of the Office of Desegregation Monitoring. I am therefore asking that the Court conduct a hearing: (a) to identify the instructions received by the Office of Desegregation Monitoring (later referred as the ODM) regarding monitoring and reporting in reference to the LRSD's Motion for Unitary Status; (b) to consider whether the instructions received by the ODM were consistent with the earlier identification of ODM' s role as set forth by the Court of Appeals for the Eighth Circuit; and ( c) to identify with greater particularity ODM' s monitoring and reporting role regarding the three school districts, If the Court is inclined to have me formalize my October 1, 2002 letter and today's letter in motion fonn, I will be happy to do so. I am also writing to observe that the Joshua Intervenors filed a Motion for Reconsideration within the time allowed by law and that there has no response filed by either party within the rule time to our motion. Local Rule 7.2(b) requires that any party opposing our motion shall file such motion within eleven days. By my count, any opposing party should have filed its opposition not later than October 4, 2002. Today is obviously October 9, 2002. I am not aware that the Court has a received a Motion to Extend the Time and I have not had a request from any counsel regarding an extension of such time. Page Two October 9, 2002 Accordmgly, we request that the Court role on the motion. JWW:lp cc: All Counsel of Record Ms. Ann Marshall Brown .!!.trorne\"J at Law 17:Z3 Broadwcy Ltrrle Rod; A:rkar..s:::s 72206 Telephone (501) 374-3758 .F'zc (501) 37-! '.1187 Fil TR..4.J.~SlV1ISSION COv'JER SERET p A ...:!.. 0 ..c:-1 . Date: [ To: [ Fa..\"C: l _..... .,3.c;.....c..-7 .f.. .-.o ~L-..::cJV;___ ____,7 Re: ,. ' Sender: [_= =~===l)==========; YOU SHOu'LD RECElr'\"E [_ __ (including cover sheer)} PA.GE(S), INCLUDING l'EJS COVER. S,~'f.T IF YOU DO NOT RECEIVE ALL THE PAGES, PLEA.SE CALL \"\u0026lt;(50]) 374-3758\u0026gt;n T.he information comaineci. :in this fu:!:im:ile m~sage is attorney privilegea and couficientfal infomiation mrended only for tb.e use of 'die indivirlulll or en.tit\u0026lt;/ nllm.ed. above. Ii tile re:icier of mis mem1ge is il.Ot the intended reci:pienr, or me employee or agenr res-pons,\"bie to de!.iver re to the intended. recipient, you sre b.ereoy aoti:iied ilim any disse::nination. di.'1ri\"ouiion or copying of cllis commuuicarion is .rtricrly prohibited. If you b.ave received. this c.onmumic:ition in c!l:IOr. p1C3.!e immedi.\u0026amp;e notify us by telephone. md = cb.e ongmal message .a l.l.'l at tile above address via rb.e U.S. Post.l.l Sc:~iice. Ti:um.k you. RECEIVED OCT 1 6 2002 OFACE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NIRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. THE JOSHUA INTERVENORS' MOTION FOR RELIEF CONCERNING THE ODM BUDGET DEFENDANT INTER VEN ORS INTER VENO RS The Joshua Intervenors respectfully move for the entry of an order for the parties' participation in the establishment of the budget for the Office of Desegregation Monitoring, in accordance with the decision of the Court of Appeals for the Eighth Circuit in Little Rock School District v. Pulaski County Special School District No. 1, 971 F 2d. 160, 166 (8th Cir. 1992). This motion is based upon the following allegations and the accompanying memorandum. 1. It has come to the attention of the Joshua Intervenors that this court is in the process of reducing the ODM staff and budget. A member of the ODM staff affected by staff and budget reductions planned by the court has contacted counsel for these intervenors with regard to her legal rights. 2. In LRSD v. PCSSD, supra, the Court of Appeals for the Eighth Circuit articulated the 1 rights of the parties with regard to the establishment fo the ODM budget. To this point, it appears that the court plans to make reductions in the ODM budget and staff without affording the parties the opportunity for participation in the budget-setting process, identified by the Court of Appeals. 3. The Joshua Intervenors concern about this matted~ magnified by the virtual non-use of ODM in the process of determining whether the LRSD had attained unitary status. That is, the court's lengthy opinion is silent on the question of the court's requesting ODM to report on any particular aspect of LRSD' s compliance with the Revised Plan, evidencing that no such request was made. 4. Appeal of the court's merits decision is likely. Any contemplated change in ODM's staffing level should take account of the fact that the Court of Appeals will have the final word - (absent Supreme Court review) on the scope of the LRSD's remaining plan obligations. 5. Alternatively, ODM' s staffing and budget should not be such that it is unable, in the future, to monitor the three districts ' compliance with remaining plan obligations in the manner contemplated by the Court of Appeals. Wherefore, the Joshua Intervenors respeqtfully pray that the court: a. provide the parties access to documents exchanged between ODM and this court concerning ODM staffing and the ODM budget (in th past and in the future): and b. permit the parties to promptly review, analyze, question, and make recommendations concerning or objections regarding the ODM budget and elements thereof, prior to their implementation. Respectfully submitted, 2 /', /) / 1 I ,I I , Ro 22 Locust A venue Lexington, MA 02421 781-862-1955 Mass. 405900 ohn W. Walker ~ John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 AR 64046 . - . CERTIFICATE OF SERVICE 3 RECEIVED OCT 1 6 2002 OFACE OF OCT : DESEGREGATION MONITORING JAM Es 'J1J fi,_ r- r , ~ IN THE UNITED STATES DISTRICT \u0026amp;'!JllT_ f. ~-A\u0026lt; EASTERN DISTRICT OF ARKANSAS -- WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT ~S. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANT INTER VENO RS INTER VENO RS THE JOSHUA INTERVENORS' MEMORANDUM CONCERNING THE ODM BUDGET The Joshua Intervenors respectfully submit this memorandum in support of their accompanying motion for relief concerning the ODM budget. It has come to the attention of the Joshua Intervenors that this court is apparently in the process of reducing the ODM staff and budget. In a 1992 decision, the Court of Appeals identified the roles of the court and the parties in the establishment of the ODM budget. See Little Rock School District v. Pulaski County Special School District No. 1, 971 F 2d. 160, 166 (8th Cir. 1992). The motion seeks to insure that the parties have the opportunity for participation identified by the appellate court. A viable ODM is important to these intervenors because in their counsel's view the ODM was not given by the court the role envisioned by the Court of Appeals in the process for determining court that the LRSD had attained unitary status in most areas. Intervenors' counsel 1 want to guard against a like result in the future. . ,1/ J ff -4? . IC7Ju L / ) ~ ,,y~/4 Robert Pressman t- 22 Locust A venue Lexington, MA 02421 781-862-1955 Mass. 405900 I I :..- / Respectfully submitted, . . 46 John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing motion has been to all counsel of record on this r, day of October, 2002. ) ,- / / ,-) ( ./ J26 7 : /_,,,/ \u0026lt;\"// / -1 :./ c)---r. '-1 - 1 /, r ,1 ,J\\ 'l,/.v,__(,'f 1 1-v ,: __,,, 2 RECEIVED OCT 1 7 2002 OFACEOF DESEGREGATION MONITORING UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LOREN JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER OCT '1 C 2002 JAMES \\'I'. L'i -=RK Qy: ___ -\"t.L--=ll'~.\u0026amp;..\u0026lt;;::;:,...,..,.~~ Defendants Intervenors Intervenors Joshua Intervenors have filed a pleading entitled \"The Joshua Intervenors' Motion for Relief Concerning the ODM Budget.\" Paragraph 4 of this pleading reflects that, \"(a)ppeal of the court's merits decision is likely.\" If an appeal is to be taken, Joshua's motion is considerably premature. Following the procedure used in the past in this case (and Eighth Circuit directives), once a proposed budget is submitted by the ODM, I will enter an Order attaching a copy of the proposed budget and will provide all parties an opportunity to file objections or comments. ! To my knowledge, no proposed budget has yet been submitted, and; if an appeal is taken, it is unlikely that there will be any significant changes in the budget until the appeal is decided. Accordingly, because Joshua's motion is premature, it is denied, without prejudice. rfl IT IS SO ORDERED this 11_ day of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR~(~ ON\\o \\ l~ 10 2..- 8YJ\u0026gt;.1~~~-;;_=.....- U. S. DISTRICT JUDGE { .,, 6 8 8 RECEIVED IN THE UNITED STATES DISTRICT COURT OCT 2 1 2002 EASTERN DISTRICT OF ARKANSAS OFACE OF WESTERN DIVISION DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS PCSSD MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE PCSSD for its motion, states: 1. Plan 2000 requires that: \"An elementary school, located around 145th Street and a middle school or junior high school in the Crystal Hill/Maumelle area will be built.\" 2. The PCSSD proposes to acquire a site located at Carnahan and Murphy Drives in Maumelle, Arkansas and to construct its new middle school there. 3. The PCSSD proposes to build a school with a capacity of 1,000 students and to reserve 200 seats for M to M students. 4. The history of the site selection process, statistical projections concerning racial balance and other pertinent information is set forth in the accompanying memorandum. WHEREFORE, PCSSD prays that its motion be granted and for all proper relief. 373871-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 CERTIFICATE OF SERVICE On October 22, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 373871-v1 2 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 RECEIVED IN THE UNITED STATES DISTRICT COURT OCT 2,i 2002 EASTERN DISTRICT OF ARKANSAS OFACE OF WESTERN DIVISION DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS MEMORANDUM IN SUPPORT OF PCSSD MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE Plan 2000 Plan 2000 requires that: \"An elementary school, located around 145th Street and a middle school or junior high school in the Crystal Hill/Maumelle area will be built.\" This Court approved a district-wide conversion to middle schools on June 4, 2001. Accordingly, this request is specifically to build a middle school to be located at Carnahan and Murphy Drives, Maumelle, Arkansas. A Brief History 1. Pine Forest Elementary School remains the only PCSSD school within the city limits of Maumelle. Pine Forest Elementary School was built in 1980. The present capacity of the school as used this year is 556 .. Maumelle was incorporated in 1985 with a population of 4,359. Today, the population of Maumelle is approximately 10,557. 369448-v1 2. Since its inception as a town in the 1960s, junior and senior high students from Maumelle have all been bused to Oak Grove Junior-Senior High School. As noted in previous filings with this Court, the PCSSD desires to convert Oak Grove into a 9-12 high school and to construct a 6-8 middle school to substitute for the current Oak Grove Junior High School. 3. Currently, Pine Forest Elementary, which would jettison its sixth grade under this proposal, can accommodate only 63% of K-6 children residing in Maumelle. The remainder are currently bused to either Crystal Hill Elementary or Oak Grove Elementary. Under this proposal, both Crystal Hill and Oak Grove Elementary would become K-5 schools. 4. To accommodate current M to M sixth graders at Crystal Hill and to otherwise help realize a fully intergraded middle school, the PCSSD would reserve 200 seats at the new middle school for M to M students. 5. The PCSSD Board of Directors voted 6 to Oto seek approval for a school located within Maumelle at their meeting held on November 13, 2001. Advantages of a Maumelle Site 6. The proposed school will allow the PCSSD to move toward completing its conversion to the middle school system and will relieve over-crowding at the landlocked Oak Grove Campus. 7. The proposed school will allow the PCSSD to establish a middle school with an interdistrict feature offering more choices and grade levels particularly for those LRSD students who currently attend Crystal Hill Elementary. 369448-v1 2 8. The PCSSD proposes to construct the school with a capacity of'1,000 students providing room not only for the 200 seats reserved for M to M students 1, but also space for students who can be attracted from the local charter school, area private schools and children who are currently being home-schooled. 9. The PCSSD proposes to begin construction by April 1 of 2003 so that the new facility can be open for education by August of 2004. The PCSSD requests approval of this motion as early as reasonably possible so that sites specific work can be completed prior to the April 1, 2003 commencement of construction. 10. The PCSSD proposes to pay for the acquisition and the construction of the school by re-financing existing debt as approved by the voters on September 17, 2002. The Site Selection Process 11. On January 17, 2002, Dr. Henderson, then Assistant Superintendent for Support Services and now Interim Superintendent, addressed approximately 150 parents at the Pine Forest PTA meeting regarding the progress toward selecting a site for a new middle school. Five different proposed sites were highlighted. 12. On February 4, 2002, Dr. Henderson addressed the Crystal Hill Elementary PTA meeting. Again, approximately 150 parents were in attendance and the same five proposed sites were reviewed with them. 13. Dr. Henderson addressed the Oak Grove Elementary PTA meeting on March 5, 2002. Approximately 90 parents were in attendance. On this occasion, seven 1 By agreeing to this reservation, the PCSSD is assuming that M to M funding as currently configured and provided will remain in effect for the foreseeable future. If such funding is reduced or eliminated in the future, the continued reservation of such seats would likely prove impossible. 369448-v1 3 proposed sites were described. 14. By letter dated March 13, 2002, Dr. Henderson invited the Joshua lntervenors to serve on the Site Selection Committee. By letter dated March 15, 2002, Mr. John Walker, on behalf of Joshua, declined the invitation to participate. 15. By memo dated March 19, 2002, the Pulaski Association of Classroom Teachers nominated Diane Jones to serve on the Site Selection Committee, as a Knight intervenor. 16. By memo dated March 14, 2002, the principal of Crystal Hill Elementary School forwarded the names of four parents who desired to serve as members of the Site Selection Committee. One of those is a parent of an M to M student attending Crystal Hill. Oak Grove and Pine Forest Elementary Schools provided a bi-racial list of committee members by telephone. 17. A preliminary meeting of the Bi-Racial Site Selection Committee, which included representatives of ODM, was held on April 23, 2002, at Pine Forest Elementary School. 18. The second meeting of the Site Selection Committee was held on April 29, 2002, at Crystal Hill Elementary School. As part of this meeting, the Committee physically visited the seven possible sites. 19. As the process continued, some of the sites were deleted for various considerations including costs and lack of availability. 20. A copy of the minutes of the meeting held on April 29, 2002, is attached as Exhibit A. It includes capsule descriptions of each site evaluated including information concerning costs. 369448-v1 4 21. The next meeting was held May 8, 2002, at Oak Grove Elementary School. 22. A revised list of the Site Selection Committee members as of May 1, 2002, is attached as Exhibit B. 23. At the Oak Grove meeting, an initial vote was taken to rank the available sites. A final meeting was held on June 10, 2002, at Pine Forest Elementary School. At the end of the process, the site described in Paragraph 1 of this memorandum was selected by the Committee and approved by the School Board. Statistical Considerations 24. As part of the Court approved process for building Crystal Hill Elementary School, the PCSSD agreed to reserve up to 399 seats at Crystal Hill for transferring LRSD students. The construction of the middle school would eliminate the sixth grade at Crystal Hill. It is appropriate to reserve, at a minimum, that prorata number of seats at the new school for LRSD students. 25. Excluding pre-K, there are seven grades at Crystal Hill including kindergarten. This equates to 14% of the seats. 14% of 399 is 56 seats. 26. This number, however, is not sufficient to reach the long-standing PCSSD goal of a minimum of 20% African American students at every school. Accordingly, the PCSSD proposes to reserve a total of 200 seats for eligible M to M transfers at the new school. This would provide 10% of the African American student body if the school is built to house 1000 students. 27. This number coupled with the African American student population currently residing in the Crystal Hill, Pine Forest and Oak Grove zones will be sufficient 369448-v1 5 to safely populate the new school at at least 20% minority. An examination of the current fourth, fifth and sixth grades at those referenced schools demonstrates this projection. Crystal Hill Pine Forest Oak Grove 4\"' Grade Black Students 4\"' Grade Black Students 4\"' Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 51 51 2 9 11 5 9 14 5'\" Grade Black Students 5'\" Grade Black Students 5'\" Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 51 51 0 20 20 1 6 7 61 \" Grade Black Students 6'\" Grade Black Students 6'\" Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 38 38 3 8 11 4 17 21 140 140 5 37 42 10 32 42 28. To make the projection, one should consider both the M to M students currently attending 41 \\ 5th and 6th grade at these schools, together with the resident African American population in these zones. This totals 224 students. This number, as compared to 1,000 seats, projects a minimum population of over 22% African American at the new middle school. 29. Overall, the latest census figures project 7 40 school children between the ages of 12 and 15 years old will be resident within the city limits of Maumelle by the . - year 2005. (Please see Exhibit C). This, together with the students who will be transferred from the Oak Grove area together with the projected M to M students, dictates sizing the school to accommodate 1,000 students. Staffing 30. There should be no negative affects on current staffing. While the Oak Grove Junior/Senior High will be no more, the new middle school will require similar, if not identical, administrative staffing. 369448-v1 6 31. The same students who are currently taught at the sixth grades at the three elementary schools will simply attend the new middle school. The same students who would be seventh and eighth graders at Oak Grove Junior/Senior High School will simply be attending the new middle school but will require the same number of teachers as the District currently employs at the sixth grade in the elementary schools and at the seventh and eighth grades at Oak Grove. Attendance Areas 32. The \"attendance zone\" for the new middle school will be identical to the current attendance zone for Oak Grove Junior/Senior High School. Accordingly, there will be no need to change any attendance zones. Transportation 33. Currently, all secondary Maumelle students are transported from ', ... Maumelle to Oak Grove for grades seven through twelve. Under this concept, resident Maumelle students would now be allowed to attend grades six, seven and eight in their resident community but would continue to be transported for grades nine through twelve at Oak Grove High School. Those Oak Grove students currently attending Oak Grove Junior High School would be transported to Maumelle for their middle school years. The PCSSD believes that this arrangement generates greater equity for the affected communities as the transportation factor is more equally shared under the new arrangement. 34. M to M students would continue to be transported by choice. That is, since they elect to be M to M students, they are not \"assigned\" to the schools they select. Under this proposal, they would simply have the option to continue in an 369448-v1 7 interdistrict setting that includes the seventh and eighth grades and does not terminate at the sixth grade. WHEREFORE, the PCSSD prays that the Court approve the location of a new middle school located at Carnahan and Murphy Drives, Maumelle, which would reserve 200 seats for M to M transfer students and for all proper relief. 369448-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 By _ ....,...._~--..,..:....;:;=-a.__ _____ _ A nty Special s 8 CERTIFICATE OF SERVICE On October 22, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 369448-v1 9 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 12201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 PULASKI COUNTY SPECIAL SCHOOL DISTRICT Donald J. Henderson, ED.D. Assistant Superintendent DIVISION OF SUPPORT SERVICES 925 East Dixon Road/P.O. Box 8601 Little Rock, Arkansas 72216 (501) 490-2227 Ext. 209 Fax: (501) 490-0483 Minutes of Crystal Hill/Maumelle Area Bi-Racial Selection Committee Meeting April29,2002 Dr. Don Henderson opened the meeting by handing out a_ meeting agenda and a sign-in sheet for attendees to sign. Dr. Henderson provided several handouts to the attendees and discussed each handout as .they were distributed. Comments and questions were made during the handout process. Dr. Henderson introduced Mr. Jim Sharkey, City of Maumelle, who went over the possible sites. Mr. Sharkey had several map displays that helped show the location of the sites. The sites discussed were six sites from the Maumelle area and the site adjacent to Crystal Hill Elementary owned by PCSSD. Sites 1 and 2 are owned by the City of Maumelle and land costs would be $25,000 per acre. If one of these sites is selected the City would provide an access road and utilities to the site. Site 3 is along Maumelle Boulevard north of the Kroger Store. This site originally was 19 acres but due to a recent partial sale the area now available is 12 acres. Additional acreage is available from adjacent property owners so that a 20 plus acre site could be obtained. The owners of these lands would want to do some type of land swap rather than sell the properties. Access and utilities are available to this site. Site 4 is a 19-acre site at intersection of Naylor Drive and North Odom. Asking price is $50,000 per acre. Access and utilities are available to this site. - Site 5 is a 42-acre site north of the Molex Plant. Needed acreage would be available at $1 .00/SF ($43,560 per acre). Access and utilities are available~to 1111 ___ 1111!11_IIII this site. . EXHIBIT I Site 6 is an 18-acre site owned by Baptist Health. Addition acreage is available from adjacent property owners so a 20 plus acre site could be obtained. Price is in the $2.00 to $2.50/SF ($87,120 to $108,900 per acre) range. Access and utilities are available to this site. Site 7 is property owned by PCSSD that is adjacent to Crystal Hill Elementary. Approximately 20 acres of the 30 acres originally purchased for an elementary/middle school site is available for a middle school. The property value in this area is probably in the $3.50 to $5.00/SF ($152,460 to $217,800) range. This site could be used in a land swap if needed. Following Mr. Sharkey's presentation a field trip via PCSSD school bus was made to visit each of the possible sites. The field trip concluded at approximately 8:00 PM. Next meeting of committee will be at Oak Grove Elementary on Wednesday, May 8, 2002 at 5:30 PM. Revised 05/01/02 CRYSTAL HILUMAUMELLE AREA MIDDLE SCHOOL SITE SELECTION COMMITTEE COMMITTEE MEMBER Terri Ayers ( j. ; 12 Mine Hill ; I No. Little Rock, AR 72118 758-2861 / Russell Laster 24 Hogan Drive Maumelle, AR 72113 851-2151 j Ms. LaBrenda Cohens 1 \u0026lt;1j ').. ?- 7-022 Marche Lateral Road No. Little Rock, AR 72118 851-1717 Mr. Anthony Gross ~,- ., 10711 Mundo Road No. Little Rock, AR 72118 r t \u0026gt;.- Ms. Diane Jones _,} r 123 Ridgeland Drive Maumelle, AR 72113 851-8188 / M s. P am Skile s ..f,. . :,.. i ,,. \".I ': .;_ 13 Havenwood Lane 1\\ 1 Maumelle, AR 72113 753-7653 / Ms. Pam Roberts 117 Carnahan, Suite 3 : .1. :. {:'j : i.__:,tJJ :,..., Maumelle, AR 72113 851-9300 ,11'1s. Essie Coffee .i'. 1),/ 13916 Old Maumelle Rd. Maumelle, AR 72113 851-2696 I ,. ! v'Walter Pace , l-s( i'-, 25023 Highway 365, North Maumelle, AR 72113 851-1388 :. : . \\ ~ .. ~\\ ~ REPRESENTING Crystal Hill Elementary Parent Crystal Hill Elementary Parent Oak Grove Elementary Parent Oak Grove Elementary Parent Knight Intervenors Community Person PCSSD School Board Member District Bi-Racial Committee District Bi-Racial Committee I EXHIBIT /3 -/4s. Mary Scruggs 8 Hickory Place Maumelle, AR 72113 851-8450 -l -.. .. - vl\\1r. Brent Lowrey J. :;.!' . '. (t\\.; 14505 Berberich No. Little Rock, AR 72118 803-4456 . /4r. and Mrs. Reggie Davis _ 4 Holly Brook Cove :,_.\\ ';\\) I 1 Maumelle, AR 72113 851-2177 , Mrs. Nancy Foster 12 Barber Drive Maumelle, AR 72113 851-8708 / 1-Mrs. Shenel Sandidge '. : . _ ,, 17 Pin Oak Loop (_., . Maumelle, AR 72113 \\ (_.-, :,; if_, ,. f:, ~..l 57(H) 682-7893(W) Mrs. Carol Worley 12 Stoneledge Drive i . } \\ ( . Maumelle, AR 72113 'r'.\\ r: : , , . J 851-8208 (H) ~2.1'.\"~.5~5 (W) v1'1rs . Melissa Guldin Office of Desegregation Monitoring One Union National Plaza r: ,, t ! 124 West Capitol, Suite 1895 , :\\\\ : \\ Little Rock, AR 72201 376-6200 / Mr. Horace Smith Office of Desegregation Monitoring One Union National Plaza ('. i : 124 West Capitol, Suite 1895 Little Rock, AR 72201 376-6200 .)Mr. Richard Crider 26 Sugarloaf Loop Maumele, AR 72113 851-8846 . . .... - .. -- --~--- --- ......... . Oak Grove Elementary Parent , Oak Grove Elementary Parent :,u' Pine Forest Elementary Parent Pine Forest Elementary Parent Pine Forest Elementary Parent Office of Desegregation Office of Desegregation Crystal Hill Elementary Parent . ( . I ~ 's. Barbara Means '.: __ l.~ / M ... 1J, tI; t ,.;-,L. .. ~_r j \"J tv'~ ,'\\\\\": _. 13500 Ridgehaven Road G ; . \\( U i C ..-r \u0026lt; ,.\\ Little Rock, AR 72211 223-8477 Dr. Donald J. Henderson. 925 East Dixon Road Little Rock, AR 72206 490-6209 Dr. Martha Johnson 925 East Dixon Road Little Rock, AR 72206 490-6205 Mr. Jim Sharkey, CCD Director Community and Economic Development 550 Edgewood Drive, .Suite 590 Maumelle, AR 72113 Mr. Junius Babb Assistant Superintendent Little Rock School District 501 Sherman Street Little Rock, AR 72202 Mr. Bobby Acklin North Little Rock School District 2700 North Poplar Street North Little Rock, AR 72114 Crystal Hill Elementary Paren,t PCSSD Assistant Superintendent PCSSD Director of Equity ., . c~;s~s~,ta-_f~ ;r -\u0026lt; . -~ . Pulaski County Special School District . Pro:pQsed)\\fi:dd'}e S~bool ,. According to the 2000 U.S. Census, 1,984 children between the ages .of 5 to 17 years old reside within-the City of Maumelle . . The average annual growth rate for.this age group w~ 4%, between the y.eatS 1990 and 2000. Based on:this continued average rate of growth, the City of Maumelle should have . approximately 2; 146 children in the-year 2002 and 2, 4l4 children in the: y~ar-2005. According to the 2000 U.S. -Census, 591 children between the ages of 12 to 15 years old . reside within the-City of Maumelle. The average annual growth rate for this age group was 4. 6%, between the years 1990 and 2000. Based on this continued average rate of growth, the City of Maumelle should have approximately 646 children in the year 2002 and 740 children in the year 2005. According to the 2000 U.S. Census, 431 children between the ages of 13 to 15 years old reside within the City of Maumelle. Unfortunately, the U.S. Census did not obtain data on 12 to 13 year old children. Source: Mr. Jerry L. Bell Assistant Research Specialist Census State Data Center UALR Institute for Economic Avancement Tel: 501-569-8538 EXHIBIT I ~ RECEIVED C lr-D \\f- li--..J\"l'ff OCT 2 9 2002 OFACEOF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERJ.'-J DIVISION U s OISlRICT ~~SAS EASTE.RN DISTRICT oc, 2 5 2002 JAMES W. McCORMACK, CLER~ B'f.- OE.P CLE.RK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO.I, ET AL DEFENDANTS INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MOTION FOR HEARING REGARDING RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDINGS The Joshua Intervenors respectfully move the Court to set a hearing for the purpose of determining whether 28 U.S.C. 455 has any relevance to the present proceedings. The Joshua Intervenors respectfully submit that 28 U.S .C. 455 states: (a) Any justice, judge, or magistrate [magistrate judge J of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questions. (b) He shall also disqualify hi\"mself in the follovving circumstances: (]) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judg eor such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or -1- expressed an opinion concerning the merits of the particular case in controversy; (d) For the purpose of this section the following words or phrases shallhave the meaning indicated: (1) \"proceeding\" includes pretrial, trial, appellate review, or other stages of litigation; In reference to 28 U.S .C. 455(b)(2), the Comt is required to disqualify itself\"where in private practice he served as a lawyer in the matter in controversy ... \" Undersigned counsel are informed that the Honorable District Court, while in private practice, appeared in 833 F.2d 113 (8th Cir. 1987) in re: Little Rock School District vs. Pulaski Countv Special School District, No. 1., Nos. 87-2150 and 87-2363, before the United States Court of Appeals for the Eighth Circuit. The cited Opinion addressed the issue of whether Judge Henry Woods should be disqualified. The disqualification - issues had been raised by several of the parties including, notably, the Board of Education of the Little Rock School District. See attached Opinion, Exhibit A. The Court of Appeals determined \"that errors of procedure took place but we do not agree that it is reasonable to infer partiality or bias on the part the able and experienced district judge.\" The Court of Appeals apparently upheld the arguments of his honor which were made while His Honor was in private practice. The Court of Appeals did not explain its reasons in that Opinion but did so in 839 F.2d 1296, 1299. The disqualification issues, which were presented by His Honor while in private practice, were addressed in a lengthy Opinion on pages 1301, 1302 and 1303. The Court of Appeals, in that same Opinion, also addressed many of the issues which are raised or could have been raised in the present proceedings including compensatory programs in the LRSD, 839 F.2d 1306, magnet schools, 839 F.2d 1309, and teacher assignments in LRSD, 839 F.2d 1296. -2- The Court , in writing its Opinion dated September 13, 2002, included virtually all the citations from the Court of Appeals (see Exhibit B) hereto but did not refer to, mention or address these two impo1iant Opinions in which the Collli, participated as a trial attorney in private practice. Plaintiff's counsel have sought to obtain the briefs which were filed with respect to Nos. 87-2150 and 87-2363 by His Honor, while in private practice, and any other briefs or activity which address that subject and have been unable to do so in a timely fashion. Their own records are incomplete regarding those filings . Request has been made of the Clerk of the Court of Appeals, however, to retrieve such briefs of all the parties regarding the two cited cases and are informed by the Clerk of that Court that he will retrieve the file. See Exhibit C. The Joshua Intervenors request that the Court convene an evidentiary hearing for the purpose of exploring the role the Court had, if any, while in private practice with respect to the subject case. - In this respect, counsel having just learned this information, also notes that the Court has employed as a law clerk of the Court's staff one of the original lawyers who filed the instant case, Ms. Janet Pulliam. Counsel also note that at least one of Joshua counsel is a friend of Ms. Pulliam. Ms. Pulliam and her associates, however, are listed as counsel of record in at least these appellate citations; 778 F.2d 404, 407; and 959 F.2d 716. She was in association with Phil Kaplan and other counsel in833 F.2d 112 where Mr. Kaplan's name appears before the Honorable William R. Wilson, Jr. and she was in association with Mr. Kaplan in 839 F.2d 1296. This is confirmed by the fee application of counsel for the LRSD which went to the Comi of Appeals in 1992. See Exhibit D. The Joshua Intervenors believe that 28 US.C. 455 issues are raised which should be developed at a hearing. Counsel are not moving for the Court to recuse at this time; however they would like to have an opportunity to review the proceedings that are set fo1ih above and any other ,., - .) - writings to which the Court was privy, while in private practice, between himself and his client, Judge Woods. In that way, the Com1 and the pai1ies would be in a better position to address the applicability of 28 U.S.C. 455. FURTHERMORE, the Joshua Intervenors respectfully further pray that at such heaiing the Court 1) inform counsel whether the present assignment of this case to this Court considered His _Honor's earlier role in the case while in private practice, in the light of28 U.S.C. 455(b)(2); 2) the basis for the Com1's conclusion that it did not have a duty to recuse pursuant to 28 U.S.C. 455 (b )(2); and 3) request that the Court, if possible, make available to counsel copies of all briefs which His Honor has filed in this case while in private practice. '; 7 / ,. ./ , I / I . I, . I //\\ /--J';,( -~-+ ,/_ ~ '-c,'2-r,.;,f,-/'Lu:..._;, Robert Pressman, Mass Bar No. 40960 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted, Jo n W. Walker, AR Bai No. 64046 JOHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (50 l) 374-3 758 (501) 374-4187 (Fax) Rickey Hick1\u0026lt;_9{ Bar No. 89235 -. Attorney at L-a:w Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 -4- \\ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing: hqf been serzs:9- fl -~ ,,,and U.S. Mail, postage prepaid to the following counsel of record, on this i-5 , l\\_day of cfl-. '/?-\u0026amp;..., 2002: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 -5- Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rocle Arkansas 72201 Ivlr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 3 833 FIWERAL llEI'ORTEU, 2d SE!t!ES In 1e LJ'l\"J'LI~ HOCK SCHOOi, lllS'!'lllC'r, Petilloncr. LITTLE HOCK SCIIOOL DIS'fJtl C:r, Appellant, V. PUl,ASIU COUNTY SPECIAi, SCHOOi, DlS'l'Rl\u0026lt;.:I' NO. I, Appcllcc. Nos. 87-2150, 87-2303. United States Court of Appeals, Eighth CircuiL Submitted Nov. 3, 1987. Deciclcd Nov. 6, 1U87. Supplemental Opinion Filed l'eb. 9, 1988. l.,iligalion was hroughl involving election for school board positions. The Uniled States District Court for the Eastern District of Arkansas, Henry Woods, J., direct,. ed elections for three school board positions and nppenl was filed and petition for writ of mandate was filed asking for disqualification of district coutt judge. The Court of Appeals, Arnold, Circuil .Judge, held Lhnt: (1) fact Lhat lawyer wilh whom trial judge once practiced npp\"ared at one time in nnolher case consolidated with pending cnse did not require district court judge's disqualification, and (2) enors of procedure in p1oceeding did not give rise lo reasonable inference of parLialily or bias so as to require disqualiricalion of district courL judge. Ordered accordingly. J. Judges e,,45 Fact that lawyer with whom district court judge once practiced appeared at one lime for amicus curiae in case consolidated with and Inter severed from pending case did not warrant disquali(icalion of district court judge; consolidated case was closed case, or at most, dormant, when it was consolidated and such fleeLing and tenuous connection did not require recusal. 28 U.S. C.A. 455(n), (h)(2). l. Herny Woods, Unile\u0026lt;I Slates Dislrlct 2. Judges \u0026lt;S=-~9(1) Procedural errors which occurred in litigation involving school board election did not give rise to reasonable inference of partiality or hias so as to require disqualification of district court judge. 28 U.S.C.A. 465(a), (b)(2). P.A. Hollingsworth, LiLtle Rock, Ark., for appellant. William R. Wilson, Jr., Little Rocle, Ark., fot Judge Woods in mandamus. Phil Kapla,i, Little Rock, Ark., for Little Rock School Dist. Sam Perroni, Little RocU, Ark., for Rayburn. Phillip Lyon, Chicago, 111., for North Lit,. tie Rock. Before HEJi NEY, ARNOLD, and WOLLMAN, Circuit Judges. ARNOLD, Circuit Judge. The two proceedings captioned above, to gether wiLh a number of appeals raising related issues, were argued before us on November 3, 1987, in Little Rock, Arkansas. Two of Lhe many important issues p1esenled deserve immediate answers: (1) Shall the school-board election now scheduled for December 8, 1987, in the Little Rock School District (LRSD), be allowed to lake place? (2) Who shall preside over the District Court! No. 87- 2368 is an appeal by LRSD from Lhe DistricL Court's I order of October 1, 1987, directing that elections for three school-board positions be held on December 8, 1987. This order is affirmed. We find no error of law, abuse of discretion, or clearly erroneous finding of fact in the District Court's order. It is ou, understanding that LRSD is free now to pursue actively the search for a new superintendent, and that it will be free to hire someone right after the elec tion. No. 87-2160 is a petition for writ of mandamus filed by LRSD, asking us to Judge for the Eastern District of Arkansas. APPLICATlON OF WOOD 113 Cltcns833 F.211 ltJ (SlhClr. 1981) declare that Judge Woods should have dis- The judgment in No. 87-2363 is affirmed qualified himself. In the alternative, it is The petition for writ of mandamus in No. suggested that we simply direct that anoth 87-2160 is denied. We t.lirect lhnt our rnnn er judge be assigned lo this case. ln addi dates in these lwo cases issue forthwiU1 lion to the petition for mandamus, various 1 t is 50 ordere\u0026lt;l. appeals also include suggestions for Lhe disqualification of the trial judge. We are not satisfied that such drastic re1ief is ap propriate. [1] Two main grounds for recusal are urged. First, a lawyer with whom Judgt? Woods once pracLiced appeared at one Lime for an amictis curiae in a case called Cla,t, v. Board of Educ. of the Little Rock School Dist, No. LR-C-64-155. The o;otrict Court first consolidated Cla,k with the instant case, then later severed it and returned it to the docket of another judge. Disqualification is sought under 28 U.S.C. 455(b)(2), which requires disqualification \"where in private practice . . a lawyer with whom [the judge] previously prncliced law served during such association as a lawyer concerning the matter.\" We disagree with this argumenl Clark was a closed case, or at most dormant, when it was consolidated with this one, and in any event it has now been severed. We do not think that such a fleeting and tenuous con nection between the present case and the judge's p3rlner's activiLies while in practice years ago, was intended by Congress to require recusal. [21 In addition, Lhe parties seeking disqualification assert that because of certain procedural improprieties the judge's \"impartiality might reasonably be questioned.\" 28 U.S.C. 455(a). We agree that errors of procedure took place, but we do not agree that it is reasonable to infer partiali ty or bias on the part of U,e able and experienced District Judge. He has performed with diligence in circumstances that are anything but easy. We decline to re rnove him from the case. Another opinion will be filed in due course further explaining our reasons for the conclusions expressed today with re spect to the election and disqualification matters, and addressing as well the other questions raised in these cases. In re Applicalion of Lnny A. WOOD lo Appear Before the Grnnd Jury (Misc. 85-L-02). Appcnl of UN11'ED S'l'A'fl~S of America. No. 86-1719. United SLnl.es Court of Appenls, Eighth Circuit Submilled March 10, 1987. Decided Nov. 12, 1987. Former conspirncy defendant, who w; acquilted, broughL applicalion to mnke inc vidual presentation lo grand jury concer ing allegations of perjury by F'Bl agent. United States ALtorney presented alleg lions lo grand jury, which declined to t.al acLion. Applicant then filed petition alle ing matter had not been fairly present, nnd again requesting permission to nppe before grand jury. The United Slntea D lrict Court, District of Nebraska, Wan, !{. Urbom, J., issued order lo United St.ul Attorney of Disll\"ict to make represen1 lion of matler, or applicant's petition war be granted. The United States appeal\u0026lt; The Court of Appe\u0026gt;tls, Henney, Cir\u0026lt;! Judge, held that (1) District Court's ori was proper exercise of supervisory pow and (2) order did not violate separation powers. Affirmed. f\u0026lt;'agg, CircuiL Judge, dissented w opinion. ~ -- \u0026lt;.\u0026gt; ~- ..) ---:s: -~ l-l{ - 921 F.2d 1371 (1990) 949 F.2d 253 (1991) 56 F.3d 904 (1995) 148 F.3d 956 (1998) 243 F.2d 361 (1957) .369 F.2d 661 (1966) 426 F.2d 1035 (1970) 449 F.2d 493 (1971) 465 F.2d 1044 (1972) 705 F.2d 265 (1983) 778 F.2d 404 (1985) - 971 F.2d 160 (1992) 131 F.Jd 1255 (1997) 83 F.Jd 1013 (1996) 112 F.3d 953 (1997) JOHN W. WALKER SHAWN CHILDS ivlr. j\\,fichael Gans United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Court House Room 24.329 111 South 10th Street St. Louis, MO 63102 JOHN vV. 'vVALKER, P.A. A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FA.t'C (501) 374-4187 Vi.a Facsimile - 314-244-2780 October 22, 2002 Re: Case No. 84-1543 Little Rock School District v. Joshua; Case No. 84-1620 Little Rock School District; OF COUNSEL ROBERT JVIcHENRY. P.A. DONNA J. 21-IcHENRY 8210 HENDERSON ROAD W'ITLE ROCK. ARKANSAS i2210 PHONE: (501) 372-3425 FAX (501) 372-3428 EM.ill: mchenryd@swbell.net Case Nos. 87-2150 and 87-2363 - Little Rock School District v. Pulaski County Special School Dear Mr. Gans: Would you kindly search your files and advise whether you have in your archives the briefs of the Appellants and the Appellees regarding the above captioned cases. I am panicularly interested in whether there were briefs filed on behalf of the District Court in the above captioned cases. JWW:js Thank you for your attention to this matter. ~incerely, %9 F'JWBJIJ\\L ItEPOitTJm, 2d SERJES Cl'lTl,E R\u0026lt;JCI( SCHOOL D!STR!CT. Appollant, Aune Milchell; Bob Moore; Pfl.t Gee; Pal Rayburn; Mary .T. Gngej North LiHli Roch CIDs:;room Teachers Associalion; Pula!;Jd Association rJf Clai-~room TeaChP.r~; Litf.le Rock Cl~ssroom 'J.'':!:achers Association; Al~xa Arm slron:;; I{arlos Armsfronr;; Etl Bullinv ton; 1\\h,yyam DcJ.vjs; .Jani1.::e Deni: John Harrison; Alvin 1-J.ndson; Talia Hut.Ison; Milton .Jacksoni Lor\u0026lt;2:ne Jo.~ht1a; Lesl.ie .lo!'lhu;:,.; Stacy .Joshua: Wayne .Joshuai ltatherine f{nighl: Sara Matthews; Ber.it)' Mcl{inney; .Derr iclt Milesi .hrnlCe Miles; .John M. Mi l2s; NAACPi Joyce Person; Brli1n Tnyl01:; Hilton Taylor; Par5l,a 'f~ylor: RfJbert Willingham; 1'011y~ Willi11g. ham, Jnterve11orn, V. PULASIU COUNTY SPECIAL SCHOOi, D_18TJ1ICT II I; North Little . Rock School DislrJct; Ll;!:OI\\ B:irues; Sheryl Dunn; Mac Faulhn~ri Ilichanl A. Gid, ding:,; Mari:,.rme Go::;ser; Dl111 Hind man; Shirley Lowery; Bob Lyon: GCorge A. McCrary; Bob l\\lf)rnr.; Stert Morley; Buddy R~ines; D~vid Sain: Hoh Stender; Dole Wnrd; John \\VRrd: Judy Weari Gni.inger Williams, Dcfen- 1lant-::, PhiliJl E. Kapla11; JanP.t PulH::i.mi John Bi.lheilner; F.A. Holling!'iworth, Appel lees. LITTLE llOCK SCl!OOL JJJSTHICT, Appellee, Aune Mitchell; Bob P.-'loore: Pat Gee; Piit R~Jburn; Mary .T. Gage; fforth Lilllr . Roel( Clrtl=i!'il'oorn Teachers /\\ssociation: Pul::u,ld As:mciation or Classroom Teachers; Little Reel\u0026lt; Classroom Te::tchets Assnc.ialion; Alexa J\\_rm!' it.ro11g; I{arlos An11!'itron11; Ed Dul/ingt, 111; l{huyyam Dads; Janice Deni: .Jo h 11 Hnnisun; Alvin Hut.Ison; T:1li.i ; . t: i.,l'l'TLE 1t0CJ{ SCHOOL lHS'l', \" Plll,ASIO \u0026lt;)T\\'. 8CltOOL I . 'i.l'I Cllc :i.c: 959 F.,.d 716 (IUh Cir. 1992) Huclsun: Milton Jackson; .l,ur-?:nc Josh- Sara l\\lnU:llcw:,: H\u0026lt;'cl(J' l\\'lcllin ucJ'; Hcr- 110; Le~lie. Joshua; Slncy Joshun; riclr J\\.li les; .Tn ni (e Mi.lr.:r.; Jo hn M. Wr1y11e Joshua; J(alhninc J.{nighl.; Miles; NAACP; Joy\u0026lt;:~ .Pcnm11: Bthrn Sl\\rn ~fa.Llhews: He.ckr l\\ld{ inuer; Der- Taylor: .lli ll.0 1\\ 'l':t)' lor; Par i:: hn TaJ lor; rick ~mes; Janice ntiles; .Juhn I\\'[. lloherl. \\V illi11 p. lrn 111: 'f'onJ'a Willin rr- ~liles; NAACP; Joyce Persol!; Ddan Imm, lulervcnon;, Tr1rlor; Hilto11 Taylor; Pan; lrn. Tay lor; v . Robert Willi11ghru11: To11yn Will ing- PUl. ,\\Sl\\l CO\\JN'l'Y sn;c.u1. SCIIOOI, ham, IntervenonJ, PULASl{l COUNTY SPECIAL SCHOOL DISTRICT # I: North Little !lock School District: L(!on Barnes; Sher.\\'! D111111: J\\lnc Faullrner; Riclrn rd A. GicldingSi Mnria1111c Gosser; Don Himlmnn; Shirley i..fJtrery: Bob L)'OJli George A. l\\kCrory; Bol, Moore; Sl.c,e ~forley; Butld.r Rnines; Dadd Sain: Dab Stender; Dale \\Varel; .J ohn Wnnl; Judy Wear; Grainger Willin111s, De[en don ls, Philip E. J{nphn; .i~t1et Pullia111; .John IJilhcimer: P.A. llo ll i11gsworth, Appe/la11ls. LITJ'LE ROC![ SCHOOL DIS'l'!llCT. Appelhrnt, Anne Milchclli llolJ l\\foore; Pat. Gee; Pnf: Hayburn; l\\fory .J. Gage: Norlh Little flock C.:las~room Tcad1crs Association; Pulos-kt Assor.iation ur Classro(1m Tenchers; J ,iltle Rock Cla~sroont . Teo.chers J\\.ssodalion; Alcxn Arm-strong; Rarlos Annslro11g; Ed B11fli11r.lo11; l(hayyfuu J.)avi!';; Janice Hcnl.: John Harrison; Aldn Ilml.c;on; 'l'alin Hudson: Milton .fncksoni .Lorc11e .Jo~h. ua; Leslie .Joshua; Sl0;cy J o~ lrn :i; Wa_rne .Jo~lni:i.; !{nllt!!dne JC11 ig-llt.i IJISTl l l CT ff .l: North l,lltlc H.oclt fk hoo l Hist.rid: Leon JJ:in1 1~!;i Sher.1'1 1J111111; .t\\:lnc Ji'1111 llmer; lticJrnnl A. n it1- di 11 r,s; Muri:rnne Om:sex; ])un Jl i1111- 1tm n; Sh irlny l,nwcty: Uob L.Yon: \u0026lt;:cnrirc A. McCrnry; Hoh Moon::; Steve .l\\'lorl~y; Utu111y .1lai 11 e5; 1):1\\'id S:i i1t; Boh Sl:cntlc r; On ie \\Vnnl; John Wnnl; Jud]' Wear; (~ rai11 r~er \\V illi;1111 ~, DP.fen~ Phi.lip R Rapln11: .fmtd I1u11i:1111; Joh11 Bilheimer: P.A .. ll ollin ~!-wmth. Appcll cte,;. Nos. D.l-.tr.3R, !H-1U1R, , .. ,,1 D.l--ZIG2. United Stat.es Court: or Appe:tlf::, gight;h Circuit. Suhmitted ,fan. '1, J992. Decided Marc:li ?..!I, .lH92. .Law firm which ,eprescuted school di$ti ict in schoril de~eg-rcg:ll:io11 Ci\\SC n11plied (or att.orney fees for ~crv icP.s rendP. rr.,1. The United Stat.e~ .Uisl.rkt Court for I.he gast.r.rn Dist.rid n( Ark~nsas, Snsa11 Web her Wrir,hl:, ,J.1 round thnt. di~trict Wt18 a prevnili11g p:ut_y, l:h:it t.l1e parties hn,I agreed l:lrnt clisl:dct would prosecute foe pct.ilions at firm~ pn~vailing 1ntet,, that di~t.rid wonlrl pay tliffcrP.nr:.c bet.ween \\.heir billed ml.rs \"ml \\ltocr.ed~ u.f nny :tU.oi:11cys1 fees award, and 1.hnt I.he p:trtir.~ hnll rnotlifir. cl their n,rrec111c11l. l,t\u0026gt; providP. that ixro11p :ind firm \\\\;ou ld split: ewinly any aw:tnl mncle h_1 the coo rt. I lir,l.rid nppe:ile,1. The Court of Appeals he.lei I.hat: (1) nmouol: of nwanl was neil .her dearly erro1H?.0115 nor ~huM of ,!iscrnl:ion: (2) (i11din1,r l.h:1t. cnt\\- 1-rnd r.xisl.ed hct:wccn clistr id: hnd firm a11d conl.enL\":: of I.Im cont.rnd w:m supported hy I.he e,,idenr.e; and (B) tlisl.ricl: w:is not e::; l: opp,~d 1-(1 dcf~nd :tj{:dn~I: conlP.nl.ion llrnt superin!:cudent had np;recd l.o firm's ptopost, I for r;o;r,o ~plit in aw~rd of :'tU.ornnys' foes . Affirmed. --:..---____ __ _ RECEIVED OCT 3 1 2002 f:t1 -o UC'.' Mn: f~.fl.JI IN THE UNITED ST A TES DISTRICT coultl5'rt:,~N 8itf~,trl 1 OFFICE OF EASTER.t\"'\\J DISTRICT OF AR.KAJ.\"'\\JSAS DC Hicr,4Jtt;SA.s DESEGREGATIOH MOHITORIHG WESTERN DIVISION JAM T 2 5 lOO By.- s VV Mccc , '2 LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL _DISTRICT NO.I, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL RMA.cic 'L'~F Of: P C(;;;RK DEFENDANTS INTER VEN ORS INTER VEN ORS THE JOSHUA INTERVENOR'S MOTION TO STAY REDUCTION OF ODM STAFF The Joshua Intervenors respectfully move for the entry of an order staying reduction of the - ODM staff, if any, until the final approval of the ODM budget. For cause, the Joshua Intervenors respectfully show the Court as follows: 1. On or about October 14, 2002, Intervenors' counsel learned from an African American staff member of ODM, Ms. Linda Bryant, that she had been given notice of termination as an ODM staff member effective on or about October 15, 2002. Ms. Bryant conveyed to counsel her understanding that her termination was attributable to a directive or requirement of this Couii. 2. Thereafter, in an Order entered on October 16, 2002, this Court recognized that under the law of the case [LRSD v. PCSSD, 971 F.2d 160, 166 (8 1h Cir. 1992)], the pa1iies must have the opportunity for comments and objections prior to final approval of the ODM budget. See Order, para. 3. This Court also wrote that \"no proposed [ODM] budget has yet been submitted .. .. \" Order, para. 4. A. \\j os hua. staymnt -1- 3. The number of ODM staff is a matter encompassed in the ODM budget. 4. In view of the content of the Court's Order of October 16, 2002, it appears that (a) the termination of Ms. Bryant may have resulted from a misunderstanding; (b) alternatively, any actual directive or requirement that Ms. Bryant be te1minated, prior to the completion of the budget-approval process, was inconsistent with the law of the case. WHEREFORE, the Joshua Intervenors respectfully pray that the Court delay any reduction of ODM staff until final approval of the next ODM budget and declare that it was not the Comi's intention that any reduction in ODM staff take place before final budget approval. Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 A: \\joshua.staymnt Respectfully submitted, y' hrr W. Walker, AR Bar No. 64046 / 'JOHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (50 l) 3 74-3758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 Nonh University, Suite 240 Little Rock, Arkansas 72207 (501) 663 -9900 -2- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent by fa~ and U.S. Mail, postage prepaid to the following counsel of record, on this ';2_ ,;1-/4iay of 62-e,6.i..\u0026amp;.-.\u0026gt;c- 2002: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 A: \\jos hua. staymnt Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3 4 72 Mr. Richard Roachell ROA CHELL LAW FIRNf 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-73 88 Jo~;lw. Walker I_ ., - .) - A.uonz2y at Zc.w 1723 Broad,,vcry Lt..,_,l~ Roe~ ld.7,b:?t.ras ';1206 Te!ephor:e (501) 374-3758 Fr=: (501) 374-418~ .L~\"\u0026lt;{ TR.~\"fSiY.J1SSION COv-:E.R SHEET .... J. Da:ie_ ,- L Io ( J.. c I Zo O --z- 1 .;o.- [ Fa::.. [ $7/-0107) i Re: [ Sender~ (_ YOU S'.!.~OuID R.ECE.:.'i/E [__ __( including cover shee~J] Pd.GE(S), INCLUDING TEJS COvL'?. \u0026amp;\u0026lt;-:.TET. IF YOU DO NOT RECEIVE .tl...LL THE PAGES, PLEASE CALL \"\u0026lt;(501) 374-3758\u0026gt;\" The iD:fur.nmion coi.mined.in tlll! fucs;mile =age is a.ttoraeyprivileged.ao.d coufidenti:il .in:formation im:encied only for the use of tb.e indidua! or entity namd above. Tf the re~e: of mis message is not th.e incencied reci-pie!lt, or tb.e e::nployee or ..g~ ~onsibie ,o ~liver re ro dle in:.;;nd.cd. recrpien.:, you are b.e.--eby ll.O~ed ibar my dissetrinarion. c!L-mbunon or copying of 1bis communication is sn-ictly prohibim. if you have received. dris communic:i.tiOll m =r, pies.se i=.ediE.Ie ilOttty us by ,:clepr..one, and return ,he or:ginal me.;sage to us E.! tb.e above address via die U.S. Pesta! Service. T..:lc.llk you.. ---------------------- ~ RECEIVED OCT 3 1 2002 - OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRJCT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRJCT vs. 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al ORDER FILED E U.S. DISTRICT COURT ASTERN DISTRICT ARKANSAS OCT 2 5 2002 ~~Mr-Y~_-s_w=GG'.::~::Q~~::':Q~:.C l!;RK -- ~ PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS Joshua Intervenors' Motion to Stay Reduction of ODM Staff is DENIED because it is moot- please see the Order entered on October 16, 2002. IT IS SO ORDERED this 25th day of October, 2002. W~0.~- UNITED ST A TESDlSTRICT E THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE (~~~~1~1,j~Q~~~~~.~~ 6 9 2 1N THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 RECEIVED PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL OCT 3 0 2002 OfFICEOF DESEGREGATION MONITORJNG DEFENDANTS JNTERVENORS INTER VEN ORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR HEARING REGARDING THE RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDING Plaintiff Little Rock School District (hereinafter \"LRSD\") for its Response to Joshua Intervenor's (hereinafter \"Joshua\") Motion for Hearing Regarding the Relevance of 28 U.S.C. 455 to the Present Proceeding states: 1. Joshua's Motion should be denied for failing to comply with the requirement of Local Rule 7.2(a) that all motions be accompanied by a brief consisting of a concise statement of the relevant facts and applicable law. Joshua essentially seeks to obtain discovery from the Court to determine whether grounds for disqualification exist and an advisory opinion as to the applicability of 28 U.S.C. 455(b)(2). The LRSD knows of no legal authority for Joshua to obtain discovery from the Court. If such legal authority exists, Joshua should include it in a brief as required by Local Rule 7.2(a). It is well-settled that advisory opinions are rarely, if ever, proper in federal litigation. See Order filed Feb. 19, 2002, p. 1 (Docket No. 3576). 2. Joshua's Motion should also be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. 455(a) and (b). WHEREFORE, the LRSD prays that Joshua's Motion be denied; that it be awarded its costs and attorneys' fees expended herein; and that it be awarded all other just and proper relief to which it may be entitled. F:IHOME\\FENDLEYILRSD 200 1\\unitary-rcsponsc-mot-hcaring-DQ wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on OctoberZr-, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\\HOME\\FENOLEY\\LRS D 200 I \\unitary-response-mot-hearing-DQ. wpd 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED OCT 3 0 2002 OFRCEOF DESEGREGATION MONITORING RECEIVED OCT 3 0 2002 OFACE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR HEARING REGARDING THE RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDING I. Joshua Cites No Authority Authorizing the Relief Sought. Joshua essentially seeks to obtain discovery from the Court to determine whether grounds for disqualification exist and an advisory opinion as to the appli,cability of 28 U.S.C. 455(b)(2). The LRSD knows of no legal authority for Joshua to obtain discovery from the Court. If such legal authority exists, Joshua should include it in a brief as required by Local Rule 7.2(a). It is clear that Joshua has no right to compel discovery from the Court. See Cheeves v. Southern Clays, Inc., 797 F.Supp. 1570, 1580-81 (M.D. Ga. 1992)(\"At the outset, there is simply no precedent for deposing the presiding judge pursuant to compulsory process in aid of motions to disqualify; and, for a number of practical as well as legal and policy considerations, there is no need or justification for such a procedure.\"). It is equally clear that advisory opinions are rarely, if ever, proper in federal litigation. See Order filed Feb. 19, 2002, p. 1 (Docket No. 3576). For these reasons alone, Joshua's Motion should be denied. II. 28 U.S.C. 455. Joshua's Motion should also be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C. - 455(a) and (b). Each of these grounds for denial will be discussed in tum below. A. It is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago. The Eighth Circuit has consistently held that motions to disqualify pursuant to 28 U.S.C. 455(a) and (b) must be filed in a timely manner. Holloway v. United States, 960 F.2d 1348 (8th Cir.1992)( claims under 28 U.S.C. 455 must be made in a timely manner); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir.1983) (\"Although 455 does not include an explicit time limitation, we believe that a timeliness requirement is appropriate .... \"); United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994) (\"This court has held that claims under 455 'will not be considered unless timely made.'\") (quoting Holloway). Parties are required to apply for recusal \"at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim,\" Apple v. Jewish Hosp. \u0026amp; Medical Ctr., 829 F.2d 326, 333 (2nd Cir.1987), for two reasons: (1) a prompt application affords the district judge an opportunity to assess its merits, and (2) a prompt application avoids the risk that a party is holding back a recusal motion as a fall-back position in the face of an adverse ruling. See In re International Business Machines Corp., 45 F.3d 641,643 (2nd Cir.1995); accord In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir.1995) (\"In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns.\"); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986) (\"Counsel, knowing the f This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resources.\u003c/dcterms_description\u003e\n \n\n\u003c/dcterms_description\u003e \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n \n\n \n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n \n\n\u003c/item\u003e\n\u003c/items\u003e"},{"id":"bcas_bcmss0837_1747","title":"District Court, memorandum opinion.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["filing"],"dcterms_extent":["43 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e \u003citem\u003e \n\n \n\n \n\n\n \n\n \n\n\n \n\n\n \n\n \n\n\n \n\n \n\n\n \n\n \n\n\n\n\n\n\n\n\n\n\n\n\n \n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n \n\n\n \n\n \n\n\u003cdcterms_description type=\"array\"\u003e \n\n\u003cdcterms_description\u003eThis transcript was create using Optical Character Recognition (OCR) and may contain some errors. R;~l~f!~O EAsr~~lkf~s,s OFFICE OF ' ' . Sf p l ,a :zooz DESEGREGATION MONITORING . J~MES . By, IN THE UNITED. STATES DISTRICT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DNISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKJ COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. MEMORANDUM OPINION ---- - ------------ PLAINTIFF DEFENDANTS INTERVENORS . __ ., INTERVENORS I. II. ill. N . A072A INDEX Page Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Long History Of Desegregation Litigation .In Pulaski County .............. 11 A. 1956 Through 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. 1973 Through 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. Interdistrict Litigation And Interdistrict Relief . . . . . . . . . . . . . . . . . . . . . . . 16 D. The 1990 Settlement Agreement And Settlement Plans . . . . . . . . . . . .. . . . . 20 E. LRSD's Implementation Oflts Desegregation Obligations Between 1991 And F. G. H. I. J. K. 1995 .... ..... ......................... .... ........ . ..... . . .. 24 Joshua's Request For An Interim Award Of Attorney's Fees For Performing Monitoring Activities After The 1990 Settlement . . . . . . . . . . . . . . . . . . . . . . 33 LRSD's First Attempt To End Federal Court Jurisdiction . . . . . . . . . . . . . . 36 The Pexplexing Final Resolution Of Joshua's Request For Still More Attorneys' Fees From LRSD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Final Approval Of Revised Desegregation And Education Plan . . . . . . . . . . 45 LRSD's Implementation Oflts Obligations Under The Revised Plan . . . . . 46 LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Relevant Provisions Of Revised Plan ......................... . .... ... ... 52 A. LRSD's Obligation Of Good Faith ................. ... . ... .. . ..... 55 B. LRSD's Obligations Regarding Student Disciplip.e ............ : .. ... .. 55 C. LRSD's Obligations To hnprove And Remediate The Academic Achievement Of African-American Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 D. E. F. G. 11. I. LRSD's Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors ................... ; . . . 56 LRSD's Obligations To Develop Remedies, Where Appropriate, For Racial Disparities In Programs And Activities ............ , , .... , . , . . . . . . . . . 57 Procedure For Raising Compliance Jssues ............... : . .. . . . . . . . . . 57 Duration Of Revised Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 rrocc:;uure ror ;::;eeKlllg Urutary ;::;rams ............................. . Effect OfLRSD's Failure To Meet \"Specific Goals\" In The Revised Plan 59 60 Controlling Principles Of Law .......................................... 60 A. The Evolving Concept of Unitary Status . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 60 B. Applicable Standard For Determining IfLRSD Is Unitary ........ ... . .. 69 C. Burden Of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 D. Meaning Of\"Substantial Compliance\" ............................. 75 E. The Metaphysics Of Using The \"Achievement Gap\" As A Factor In Deciding Unitary Status ..... .. ... .. ..... ......................... ....... 77 -1- A072A V. Findings Of Fact .............. . ..... . .. _ ............. , .... . ........ . .. 85 A. Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 B. Student Discipline . . .. . .................. . ... . ................. 95 C. Extracurricular Activities . . . . .... . . . ............ ; . . . . . . . . . . . . . . . 114 D. Advanced Placement Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Promote Participation and Remove Barriers . . . . . . . . . . . . . . . . . . . . . . . . 123 Identify and Encourage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Assist . . .................. . ... . ............ . .. .. . ; . . . . . . . . . . 135 E. Guidance And Counseling ........... . ......... : . . . . . . . . . . . . . . . . 136 F, Academic Achievement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 G. Program Assessment/Program Evaluation ................. . ........ 150 VI. Conclusions Of Law ... . .. . ........ . .. . .......... . .. . .... ... . .. ; ..... . 160 A. Unitary Status .. . ....... . . . . .... . .......... . .............. .... 160 B. Burden Of Proof . . . . .... . .... . ............... . ...... . ...... . .. 160 C. Substantial Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 D. Good Faith . .. .. . .. ...... . . .. . . ......... . ......... ... .. . . .. . . 161 E. Student Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 F. Academic Achievement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 G. Partial Unitary Status . .... .. . .. .... . ... . .... ~ . . . . . . . . . . . . . . . . . . 165 H. Tune To Fly .... . . . . . ......... . .... . ...... . . .. . . . . . . . . . . . . . . . 168 VII. Compliance Remedy ......... .. .. .. ........ . ..................... . '. . 170 VIll. Conclusion . .. : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 -ii- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM OPINION1 I. Introduction2 PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS On December 12, 1990, the Eighth Circuit Court of Appeals approved the \"Pulaski County School Desegregation Case Settlement Agreement,\" as revised September 28, 1989; separate Settlement Plans for the Little Rock School District (\"LRSD\"), the North Little Rock School District (''NLRSD\"), and the Pulaski County Special School District (\"PCSSD''), dated 11t was my good fortune to have The Honorable Joe Thomas Ray, U.S. Magistrate Judge, assigned to this case with me. I would be sorely remiss ifl did not acknowledge, here and now, the prodigious effort and talent he has brought to this project. As authors. are wont to say, \"any errors, however, are mine alone.\" 2As a Bryan Garner disciple (beginners' class), I generally favor putting all substantive legal analysis in the text and citing the supporting cases in footnotes. However, so many issues in this case beg for digressions that I have been unable to resist the temptation to include substantive legal analysis in some of the footnotes. A07?A . . . . --~ - ---- -- -- .. ... - ........ . ... ... ~ ........ - - .. , . - - ------- --- - . -----------~- ... - - - ---- ~ - - - - . .... . . . . . --- - .. January 31, 1989; and a separate Interdistrict Settlement Plan.3 LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990). At that time, both the district court and the Eighth Circuit believed that this historic settlement created the \"benchmark for the future path of this case,\" Appeal of LRSD, 949 F.2d 253,255 (8th Cir.1991), and \"a sure guide for ending this dispute and getting the parties out of court.\" LRSDv. PCSSD, 769F. Supp. 1491, 1494 (E.D; Ark. 1991), order vacated, 949 F.2d 253 (8th Cir. 1991). In the years following the Eighth Circuit's approval of the parties' final settlement of this case, all three Pulaski County school districts implemented their respective Settlement Plans under the supervision of the district court and the Office of Desegregation Monitoring (\"ODM\"). 4 Subsequently, the district court and Eighth Circuit established guidelines for allowing the parties 3 Each of the Settlement Plans for the individual school districts contained their respective desegregation obligations. In addition, the Interdistrict Settlement Plan contained the interdistrict desegregation obligations for all three school districts. These Settlement Plans had been agreed to by the parties and approved by the Court, making them \"consent decrees.\" In their pleadings, the parties sometimes refer to these Settlement Plans as \"desegregation plans.\" The three individual Settlement Plans for LRSD, NLRSD, and PCSSD, and the Interdistrict Settlement Plan were submitted to the district court for approval during early 1989. However, becausethey were not approved by the Eighth Circuit until December 12, 1990, LRSD v. PCSSD, 921 F .2d 1371 (8th Cir. 1990),. the parties and the district court generally have referred to these settlement documents as the 1990 Settlement Agreement, the 1990 Settl.ement Plans, and the 1990 Intei-district Settlement Plan. In contrast, the Eighth Circuit has usually referred to these settlement documents as the 1989 settlement agreement and 1989 settlement plan or plans. Appeal of LRSD, 949 F .2d 253, 254 (8th Cir. 1991) (\"We recognized, however, that the approved plans, which we shall call the 1989 plan or plans, would need some modification because of the passage of time\"). Regardless of the terminology used, the parties, the qistrict court, and the Eighth Circuit are all referring to the same settlement documents. In the interest of consistency, I will refer to those documents in this opinion as the 1990 Settlement Agreement, the 1990 Settlement Plan or Plans, and the 1990 Interdistrict Settlement Plan. \"The Eighth Circuit directed the district court to create and staff the ODM with the personnel it \"shall deem appropriate\" to help ensure compliance with all aspects of the 1990 Settlement Agreeinent and the four separate Settlement Plans. LRSD, 921 F .2d at 1388. -2- A072A to make agreed changes to the details of the Settlement Plans, as fong as they did not affect the \"major substantive commitments to desegregation\" embodied in those Plans. Appeal ofLRSD, 949 F.2d at256; see also LRSD, 769 F. Supp. 1491; LRSD v.. PCSSD, 769 F. Supp. 1483 (E.D. Ark. 1991), order vacated, 949 F.2d 253 (8th Cir. 1991). Between 1991 and 1996, LRSD worked toward implementing its desegregation obligations under the settlement documents. On May 1, 1992, the district court entered an Order ( docket no. 1587) approving certain changes to LRSD' s 1990 Settlement Plan and the Interdistrict Settlement Plan. A copy ofLRSD's modified settlement plan and interdistrict plan, referred to as \"LRSD' s May 1992 Desegregation Plan\" and the \"May 1992 Interdistrict Desegregation Plan,\" were attached to the court's May 1, 1992 Order. By 1996, it had become apparent to the parties and the district court that some of the desegregation obligations imposed on LRSD by the settlement documents might never be successfully implemented, regardless ofLRSD's best efforts .. Accordingly, on September 25, 1996, Judge Wright entered a Memorandum Opinion ( docket no. 2821) in which she \"invite[ d] the parties to modify the parts of the [ settlement] plan that are ineffective or unworkable.\" As a result, in late 1996 and 1997, LRSD and the Joshua Intervenors (\"Joshua\")5 entered into vu.1,11uu11,1.:1,17u\"T,111111u1..- ~, _c:1 61 uu.l'u11\\ 1 .. ~ -f\\lller,.......u.puouc school children enrolled in the three Pulaski County school districts, filed a \"Petition io Intervene\" ( docket no. 452). The Petitioners sought intervenor status ''for themselves and the other Black public school children of Pulaski County through their parents and next of friends .... \" Mrs. Lorene Joshua was the lead named parent and next of friend for her three minor school children. On May 24, 1984, the Eighth Circuit entered an Order (docket no. 565) that, in effect, granted the Petition to Intervene. Thereafter, the district court and the parties began referring to these intervenors simply as \"Joshua\" Because the intervenors represent the group of all AfricanAmerican school children in the Pulaski County public schools, I will sometimes use the plural pronoun ''they'' to refer to Joshua On occasion, the Eighth Circuit has elected to consider -3- . . , . .. -\"'- - - ---..,-- ...... .. - --- - --- .. . protracted negotiations to modify various aspects ofLRSD 's Settlement Plan. These negotiations bore fruit in the January 16, 1998 Revised Desegregation and Education Plan (the \"Revised Plan\"); which LRSD and Joshua jointly submitted to the district court for approval on January 21, 1998 ( docket nos. 31 o7 and 3136), 6 On April 10, 1998, the district court entered an Order ( docket no. 3144) approving the Revised Plan,7 which it viewed as \"an entirely new consent decree or settlement agreement between LRSD and Joshua.\"8 Unlike LRSD's 1990 Settlement Plan, as modified by the May 1992 Desegregation Plan, the Revised Plan included a section establishing a specific procedure \"Joshua\" to be only the first named intervenor, Mrs. Lorene Joshua, and properly used the singular pronoun \"she\" to refer to \"Joshua\" LRSD v. PCSSD, 56 F.3d 904, 914 (8th Cir. 1995). Either pronoun usage is correct, as long as the reader understands how the Court is defining \"Joshua;\" 6 According to the explicit language of the Revised Plan, it \"shall supersede and extinguish all prior agreements and orders\" in this case \"and all consolidated cases related to the desegregation\" of the LRSD with the following exceptions: a . The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 (\"Settlement Agreement\"); b. The Magnet School Stipulation dated February 27, 1987; c. Order dated September 3, 1986, pertaining to the Magnet Review Committee; d: The M-to-M Stipulation dated August 26, 1986; and, a eals int retin and enforcin sections a through d. above to the extent not inconsistent with this Revised Plan. 7buring the hearings on unitary status, the Revised Plan was introduced into evidence as ex 871. 8In its April 10 Order, the district court concluded, in the alternative, that, even if the Revised Plan was considered to be a \"modification\" ofLRSD's May 1992 Desegregation Plan, rather than \"an entirely new consent decree,\" it still should be approved under the test for seeking modification of a consent decree established by the Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992). See also LRSD v. PCSSD, 56 F.3d at 914; LRSD, 921 F.2d at 1387. -4- A072A and time schedule under which LR.SD might achieve unitary status: SECTION 11: Unitary Status. At the conclusion of the 2000'-01 school year, the district court shall eriter ail order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan. Any party challenging LRSD's compliance bears the burden of proof If no party challenges LRSD 's compliance, the above-described order shall be entered without farther proceedings. (Emphasis added.) Because none of the parties appealed the district court's April 10 Order approving the Revised Plan, it became a final consent decree, which now governs LRSD's desegregation obligations and establishes the path tha~ LRSD must follow to achieve unitary status and release from federal court supervision.9 On March 15, 2001, LR.SD filed a Request for Scheduling Order and Compliance Report 91n most school desegregation cases, a federal court's jurisdiction depends on the existence of constitutional violations by the school district Once the school district complies with all of its obligations under the Constitution, it achieves \"unitary status,\" and the federal court's jurisdiction ends. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16 (1971). . 1 . In Green v. County School Bd. of New Kent County, 391 U.S. 430, 4~5-38 (1968), the Court identified the following areas of a school district's operations that must be carefully exannncu m oetemnnmg wnemer 1t.nas successtu.lly converteo .. to a unnary system m whlch racial discrimination [has been] eliminated root and branch\": ( 1) student assignment; (2) faculty and staff assignment; (3) transportation; (4) extracurricular activities; and (5) facilities . . These so-called Green factors establish the floor for a school district's compliance with its constitutional obligations under the Fourteenth Amendment. Thus, in all school desegregation cases, a school district's compliance with the Green factors is a condition precedent to unitary status. Importantly, the Revised Plan required LRSD to comply with not only the Green factors, but also a host of other desegregation obligations that went well beyond the constitutional floor established by the Court in Green. Thus, in this case, the question of unitary status turns on whether LRSD has substantially complied with its desegregation obligations under the Revised Plan. -5- A072A ( docket no. 3410), 10 pursuant to Section 11 of the Revised Plan, seeking \"an order finding LRSD unitary with regard to all aspects of school operations.\" On June 25, 2001, Joshua filed an Opposition to LRSD's Compliance Report (docket no. 3447), which vigorously challenged LRSD's contention that it was entitled to a declaration of unitary status and argued that LRSD was not in \"substantial complian?e\" with certain of its desegregation obligations under the Revised Plan. On July 5 and 6, August 1 and 2, and November 19 and 20, 2001, my colleague and predecessor in this case,United States CbiefDistrict Judge Susan Webber Wright, conducted five and one-half days of evidentiary hearings to develop the facts surrounding what Joshua believed were their three strongest grounds11 for challenging LRSD's request for unitary status: first, that LRSD had not acted in good faith in implementing its desegregation obligations( 2.1 of the Revised Plan); second, that LRSD was not in substantial compliance with its obligations regarding student discipline ( 2.5 through 2.5 .4 of the Revised Plan); and third, that LRSD was not in substantial compliance with its obligations to implement programs, policies, and procedures designed to improve the academic achievement of African-American students ( 2.7, 2.7.1, and 5.1-5.8 of the Revised Plan). In a scheduling conference on December 11, 2001, Judge Wright desi~ated the week of , . January 28, 2002, to hear no more than five additional days of testimony regarding the last three 10During the hearings on unitary status, the Final March 15, 200 l Compliance Report was introduced into evidence as CX 870. 111n a telephone conference with counsel on June 29, 2001; Judge Wright made it clear that counsel for Joshua should present his strongest arguments and evidence first, followed by subsidiary arguments and evidence (docket no. 3461 at 54-55). -6- areas of the Revised Plan in which Joshua claimed LRSD had :failed to substantially comply with its obligations: advanced placement courses ( 2.6 and 2.6.2 of the Revised Plan); extracurricular activities( 2.6 and 2.6.3 of the Revised Plan); ~d guidance counseling (.2.6.1 of the Revised Plan) ( docket no. 3597 at 31-37).12 Judge Wright made it clear tha~ after she had heard the testimony concerning these last three areas of LRSD's alleged noncompliance, she would decide the question of unitary status. Id. at 36-37. On January 3, 2002, after presiding over this case with great perseverance and distinction for eleven years, 13 Judge Wright determined that it was the \"appropriate tiine to reassign this case to another judge with minimal disruption to the parties and to allow a smooth transition\" ( docket no. 3569). That same day, the case was assigned to me by random selection ( docket no. 3570).14 On March 15, 2002, one year to the day after submitting its Request for Scheduling Order and Compliance Report, LRSD filed a Motion for an Immediate Declaration of Unitary Status 12Judge Wright also ruled that Joshua could present non-curi:mlative evidence regarding: (a) LRSD's lack of good faith in implementing its obligations regarding. advanced placement courses, extracurricular activities, and guidance counseling; and (b) the ways in which LRSD's failure to substantially comply with its obligations regarding advanced placement courses and guidance counseling adversely impacted the academic achievement of African-American students . . 13JnLRSD v. NLRSD, 148 F .3d 956,967 (8th Cir.1998), the Court recognized the expertise Judge Wright had gained during her many years of service in this case: In reaching this conclusion, we are mindful that Judge Wright has been responsible for administering and interpreting the settlement agreement for some time now, ever since 1990, when she took over this case. Our review of the District Court's interpretation of the settlement agreement is, as a formal matter, de novo. But we still think it appropriate to pay some heed to the reasoned determinations of the experienced District Judge, who faces decisions in this case every month, if not every week. 14Of course, the five days of evidentiary hearings that Judge Wright had scheduled for the week of January 28, 2002, were cancelled. -7- (docket no. 3580) and Supporting Memorandum Brief_(docket no. 3581). On May 9, 2002, I entered a fourteen-page Order ( docket no. 3598) explaining to the parties my understanding of the current status of the case. Because the passing of the baton is a key factor in any relay race, the May 9 Order noted: Judge Wright, my immediate predecessor in this case, has done an outstandingjob of narrowing the issues and establishing a schedule that should allow nie to conduct no more than five additional days of evidentiary hearings on the four remaining issues and then be in a position to decide the LRSD's Motion for an Immediate Declaration of Unitary Status. For that reason, the Court intends to pick up where Judge Wright left off, without disturbing the schedule that was established and agreed to by the parties and the Court during the December 11, 2001 hearing. May 9, 2002 Order at 12 (docket no. 3598) (footnote omitted). In a telephone conference with counsel on May 14, 2002, I rescheduled for July 22-26, 2002, the last five days of evidentiary hearings on the question of whether LRSD had substantially complied with its obligations under the Revised Plan . . In an Order (docket no. 3600) entered the next day, I set forth the schedule adopted during the May 14 telephone conference. On May 30, 2002, Joshua filed their Response in Opposition-to LRSD's Motion for an hnmediate Declaration ofUnitary Status ( docket no. 3604). On June 7, 2002, LRSD filed a Reply i Brief in Support of Motion for an Immediate Declaration of Unitary Status ( do.cket no. 3607). relevant to the determination of whether LRSD is entitled to a declaration of unitary status. Thus, the record is now complete, and the issue of unitary status is ready for decision. During the last eight months, I have spent many an hour trying to educate myself on the significant rulings and agreements that have shaped the current contours of this twenty-year-old -8- A072A case.15 I have also read a ground-slide load of cases to gain an understanding of the evolution of school desegregation litigation during the last five decades and to grasp the issues a court must resolve in deciding whether a . school district has achieved unitary status. I have learned that desegregation cases are invariably complex, involve difficult-to-understand jargon, and frequently generate book-length appellate decisions, with seemingly obligatory concurring and dissenting opinions. Of course, I have found none of these discoveries to be surprising. After all, the issue of desegregation goes to both the heart of the Fourteenth Amendment's promise of \"equal protection\" and the dark soul of what was, in many parts of the country in the I 950's, a de jure segregated public school system that only grudgingly gave ground to integration-after most school districts had exhausted all available means of delay. In 1954, the Supreme Court rendered its landmark decision in Brown v. Board of Education, 347 U.S. 483, 495 (I 954) (\"Brown I\"), holding that \"in the field of public education the doctrine of 'separate but equal' has no place\" and that segregation of public education is a denial of\"equal protection of the laws.\"16 Three years later, Little Rock suddenly found itself at the epicenter of this country's first major school desegregation effort. In early August of 1957, LRSD school officials (including the school board) were prepared to implement a plan to admit a small number of African-American students to Central High School. Arkansas's Governor, Orval Faubus, ostensibly supported that plan, which, if 15This action was filed on November 30, 1982, as the last in a long line of desegregation cases, dating back to 1956. See infra, note 18. The pleadings in this case alone now occupy hundreds of feet of file space in the Clerk's office. 16The next year; the Court explicitly directed the lower federal courts to accomplish desegregation ''with all deliberate speed.\" Brown v. Board of Education, 349 U.S. 294, 301 (1955) (\"Brown II\"). -9- _ A072A ' . . .. .. ~ . implemented with the support of the State, may well have led to the peaceful integration of Central. As it turned out, however, just as school started, Faubus called out the Arkansas National Guard to prevent the \"Little'Rock Nine\" :froin entering Central. 17 Faubus, who was known as somewhat of a moderate up to that time, shamelessly fanned the flames of racism under the rubric of \"state' s rights,\" \"interposition,\" and the like. Thus, Little Rock became the first great legal .battleground in the long struggle to desegregate this country's public school system, a distinction that has left lasting wounds in this community. One can only wonder how the history of school desegregation might have been different if the first southern governor to squarely face the dictates of Brown I had done his plain, sworn constitutional duty. In view of the historical importance of this case, I believe I should review the long and winding path trod by LRSD in carrying out its constitutional duty, under Brown I and its progeny, to rid the Little Rock school system, to the extent practicable, of the vestiges of de jure segregation. Withoutatleast some understanding of that history, it is impossible to appreciate the deep passions this case still. stirs iii the litigants, lawyers, and judges who have been involved in almost five decades of continuous, unremitting school desegregation litigation in Pulaski County.18 17Faubus, of course, cited public safety concerns as bis reason for mobilizing the National Guard. He claimed \"secret intelligence reports\" indicated that dangerous outside agitators were at work in Little Rock, but these reports were never substantiated. In fact, the evidence now available suggests that the white mob which confronted the \"Little Rock Nine\" was mobilized by Faubus' own demagoguery, rather than by unidentified \"outside agitators.\" And, of course, other demagogues of a like mind were quick to pitch in. R. Reed, Faubus: The Life And Times Of An American Prodigal (1997). 18Jn 1956, the plaintiffs inAaron v. Cooper, 143 F. Supp. 855 (E.D. Ark.1956), filed suit against LRSD to force it to desegregate pursuant to the Court's holding in Brown I. In 1964, the plaintiffs filed Clark v. Board of Educ. of LRSD as a continuation of the desegregation action -10- . . . _ ..... - .,: ' - - - - . - .. 1- .. ., ... ... ,_ .. . .. --. ... ; . ~ . . .... - .... - . .. ' A. II. The Long History Of Desegregation Litigation In Pulaski County 1956 Through 1973 mLRSDv. PCSSD, 584F. Supp. 328, 331-32 (E.D. Ark. 1984), the late and distinguished United States District Judge Henry Woods, the first judge to preside over this case, chronicled in great detail the history of desegregation in Pulaski County. m bis scholarly decision, Judge Woods descnbed: the operation of LRSD m 1930, when it was a dejure segregated school district operating under the \"separate but equal\" doctrine;19 the Court's decision in Brown I, which overturned Plessy v. Ferguson; the court-ordered implementation of a plan to admit a small number of African-American students to Little Rock Central High School in September of1957;20 Governor Faubus' use of Arkansas National Guard troops at Central to place it \"off limits\" to African-American students and the subsequent removal of those troops after the issuance of an injunction by United States District Judge Ronald Davies in Aaron v. Cooper, 156 F. Supp. 220 commenced against LRSD in Aaron v. Cooper. See Judge William Overton's July 9, 1982 Memorandum and Order in Clark, a copy of which, marked Exhibit 1, is attached to LRSD's Memorandum Brief in Support ofMotion for an Immediate Declaration ofUnitary Status (docket no. 3581 ). On Noveinber 30, 1982, LRSD initiated this action against the PCS SD, NLRSD, and thP ,\\ -1 Roard nfPnnr\u0026lt;itinn ., .... v;no the consolidation of all three school districts in Pulaski County as the appropriate interdistrict desegregation remedy. Thus, LRSD has been involved continually in federal desegregation litigation for forty-six years. 19Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown I, 347 U.S. 483 (1954). 20See Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956). As discussed supra at note 18, Aaron was filed in 1956 to force LRSD to desegregate pursuant to the Court's holding in Brown. United States District Judge John E. Miller entered a decree on August 27, 1956, approving LRSD's plan of gradual school integration beginning with senior high school classes in the fall term of 1957. The Eighth Circuit subsequently affirmed that decision. Aaron v. Cooper, 243 F .2d 361 (8th Cir. 1957). -11- AQ_7~_ (E.D. Ark. 1957);21 the nine courageous African-American students entering Central on September 23, 1957, in the face of a large, threatening mob of whites; and, finally, President Eisenhower dispatching troops to Central to ensure the safety of the African-American students and to enforce Judge Davies' desegregation order.22 Judge Woods also traced desegregation plans advanced by LRSD in \"the decade of 1960 in a good faith effort to provide a solution to continuous litigation\" and the failure of those plans m \"the hysterical political atmosphere of that period.\" LRSD, 584 F. Supp. at 334. In 1966, the Eighth Circuit approved LRSD.'s \"freedom of choice\" desegregation pl~, which remained in effect through the 1968-69 school year. Clarkv. Board of Education ofLRSD, 369 F.2d 661 (8th Cir. 1966). Significantly, in its decision, the Court noted LRSD's good faith commitment to desegregation: Many of the problems encountered are not of the Board's making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system._ 21In 1957, the Eighth Circuit assignedJudge Davies, of Fargo, North Dakota, to preside over Aaron. On September 21, 1957, Judge Davies issued an injunction ordering Governor au us, e ~utant ener o e tate o ansas, an 1eutenant_ o one anon . Johnson of the Arkansas National Guard, and their officers, agents, and employees to cease and desist \"obstructing or preventing, by means of the Arkansas National Guard, or otherwise, Negro students, eligible under said plan of school integration to attend the Little Ro~k Central High School, from attending said school .... \" Aaron v. Cooper, 156 F. Supp. at 222. See also Cooper v. Aaron, 358 U.S. 1, 9-10 (1958). 22Scenes of angry mobs of white protesters confronting the nine African-American students as they entered Central and, later, troops of the 101 st Airborne Division rolling across the Broadway Bridge to restore order in Little Rock are still deeply etched in the minds of many Arkansans. -12- l A072A Id. at 666.23 In Green v. County School Board ofNe',11 Kerit County, 391 U.S. 430, 439-40 (1968), the . . Court held that school districts such as LRSD, which were the product ofde jure segregation, could not satisfy their constitutional obligations under \"freedom of choice\" plans. Therefore, LRSD formulated a new desegregation plan for the 1969-70 school year that was based on geographic attendance zones. However', because segregated housing patterns created a number of racially identifiable schools under the plan, the Eighth Circuit found it to be unconstitutional. Clarkv. Board of Education ofLRSD, 426 F.2d 1035, 1043 (8th Cir. 1970). In the 1971-72 school year, LRSD began crosstown busing to achieve racial balance in grades 6 through 12. Clarkv. Board of Directors ofLRSD, 328 F. Supp. 1205, 1209, 1214 (E.D. Ark. 1971, rev'd in part, 449 F.2d 493 (8th Cir. 1971). The following school year, crosstown busing was used to achieve racial balance in grades 4 and 5. Clark v. Board of Education of LRSD, 465 F.2d 1044, 1046 (8th Cir .. 1972). Finally, during the 1972-73 school year, all LRSD schools and all LRSD grade levels were racially balanced. B. Events Leading To Initiation Of This Action On July 9, 1982, United States District Judge WiUiam R. Overton entered a Memorandum and Order in Clark which contained many of the findings that underpinned LRSD's subsequent 23Likewise, in Cooper, 358 U.S. at 9, the Supreme Court acknowledged that LRSD was prepared to implement the plan, approved by Judge Miller in Aaron, 156 F. Supp. 220, to gradually integrate senior high school classes in the fall term of 1957. However, LRSD was prevented from following that plan by the flagrantly unlawful actions of Governor Faubus, which the Supreme Court noted \"had not been requested by the school authorities, and [were] entirely unheralded.\" Cooper, 358 U.S. at 9. -13- A072A decision to file this action.24 In many respects, Judge Overton's decision was a ringing endorsement of LRSD for successfully implementing its school desegregation plan over the last nine years. For example, Judge Overton explicitly found: (1) \"no evidence of vestiges of discrimination in the district policies or practices\"; (2) ''the district has done an admirable job in the task of desegregation\"; and (3) \"the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system and isolated complaints of discrimination without persuasive specific evidence to the contrary do not detract from that record.\" July 9, 1982 Memorandum and Order at 16 (docket no. 3581) ( emphasis added). 25 Although Judge Overton found that LRSD was operating \"as a completely unitary desegregated school system,\" he made a number of findings that raised serious questions about the future prospects for LRSD remaining an integrated school district. For' example, Judge Overton found that: ( 1) in the years after the desegregation ofLRSD elementary schools in 1973- 7 4, \"there has been a steady trend ofincreasing black enrollment and decreasing white enrollment 24As indicated previously, a copy of Judge Overton's July 9, 1982 Memorandum and Order is attached as Exhibit 1 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). 25Eleven years later, Judge Wright, in describing the operation of LRSD in the years before it filed this action, observed that many believed desegregation litigation in the LRSD \"[had] 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.\" See Judge Wright's Statement to LRSD Board of Directors and Counsel on March 19, 1993, attached as Exhibit 1 to Joshua's August l, 1996 Memorandum in Opposition to LRSD's Motion to End Federal Court Jurisdiction ( docket no. 2730). -14- A072A ~-- in the elementary schools ... and [to a lesser extent] in the upper grades\";26 (2) despite LRSD's efforts to modify student assignment plans to correct the growing disparity in the black-white student ratio in elementary schools,\"[ a ]11 of the persuasive evidence indicates the school district will have enrollment which is essentially all black, particularly in the elementary grades, within the next few years\"; and (3) by the fall of 1981, LRSD faced a host of problems surrounding the school attendance plan, including a \"significant disparity in the black-white ratio at the various elementary schools,\" complaints ofblack parents \"that their children were being bused across the city to attend all black classes,\" and the defeat of \"the last two millage increase proposals ... by the electorate ... [ creating] severe financial problems and an eroding financial base.\" July 9, 1982 Memorandum and Order at 1-6, attached as Exhibit 1 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). In an effort to retain and supplement the shrinking pool of white students, Judge Overton approved the Partial K-6 Plan,27 which created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and grades 4-6 at another. Eight of the twelve neighborhood schools were racially balanced, and four were virtually all black. Under the plan, 26In the fall of 1971, 42% of the students in LRSD were black. In each year from 1971 through 1981, the number of black students increased, while the number of white students decreased. In the fall of 1981, 76% of elementary students and 55% ofhigh school students were black. See LRSD, 584 F. Supp. at 335. In the December 16, 1981 Report prepared by the Desegregation Assistance Team from Stephen F. Austin University, the authors concluded that, if existing trends continued, 90% of the students entering the first grade in LRSD in the fall of 1989 would be black. See Stephen F. Austin Report at 19, attached as Exhibit 2 to LRSD's Memorandum Briefin Support ofMotion for an Immediate Declaration ofUnitary Status ( docket no. 3581). 27This was a shorthand reference for LRSD's desegregation plan for children attending kindergarten through the sixth grade. -15- A072A Booker Junior High School became an intermediate school; a magnet school was to be created west ofUniversity Avenue; and a committee was appointed to ensure that the four virtually all black schools would be treated equally. See July 9, 1982 Memorandum and Order at 6-11.28 Finally, Judge Overton noted that LRSD had taken a number of steps to address the problems that confronted it. First, LRSD had commissioned a study and report by a ' \"Desegregation Assistance Team\" at Stephen F. Austin University on its desegregation efforts and the challenges it faced in the future.29 Second, LRSD had begun investigating \"the possibility of seeking an interdistrict remedy through legal proceedings against the adjacent County School District and [had] hired a law firm to pursue that remedy.\" See July 9, 1982 Memorandum and Order at 6. C. Interdistrict Litigation And Interdistrict Relief On November 30, 1982, LRSD filed this action-a new case30--against PCSSD, NLRSD, the State of Arkansas, and the Arkansas Department ofEducation (\"ADE\") seeking consolidation of the three Pulaski County School Districts as the most appropriate and effective desegregation remedy for all three school districts. In its Complaint ( docket no. 10), LRSD alleged that PCS SD 28Judge Overton's July 9 decision approved LRSD's Partial K-:6 plan as a \"stop gap\" student assignment plan for elementary grades. The Eighth Circuit later affirmed that decision in Clarkv. Board of Educ. of LRSD, 705 F.2d 265 (8th Cir. 1983). 29 As indicated, supra at note 26, this report, entitled \"Building on a Generation of Accomplishment Maintaining and Strengthening Desegregation in Little Rock\" (hereinafter referred to as the \"Austin Report\"), is attached as Exhibit 2 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). 3Because this action involved claims for relief and remedies that were different from those involved in Clark, it was considered to be a new case and was randomly assigned to the Honorable Henry Woods. -16- A072A and NLRSD engaged in \"a series of intradistrict constitutional violations with interdistrict effects\" and that the State of Arkansas and Arkansas Department of Education (hereinafter referred to collectively as the \"State/ADE\"), through funding and other state action, \"operated, maintained and/or condoned a racially segregated structure of public education under color of state law.\" After conducting a trial on the merits of the claims asserted in LRSD's Complaint, Judge Woods entered a Memorandum Opinion setting forth detailed findings of fact and conclusions oflaw to support his detennination that each of the three Defendants had violated the Constitution by creating \"racial isolation between and among the districts\" that had caused six specific \"interdistrict effects.\" LRSD, 584 F. Supp. at 349-51.31 Judge Woods noted that, at a later date, he would conduct a hearing to take evidence regarding the precise nature of the remedy that should be fashioned to cure the interdistrict effects of \"substantial interdistrict segregation.\" Id. at 352-53. During the subsequent remedial hearings, PCSSD advanced a plan that retained the three autonomous school districts and relied on the development of specialty or magnet schools to attract students from one district to another. LRSD v. PCSSD, 597 F. Supp. 1220, 1222-23 (E.D. Ark. 1984). NLRSD advanced a plan that retained the three autonomous school districts, transferred certain geographic areas from PCSSD to LRSD and from LRSD to PCSSD, and depended heavily on the use of majority to minority transfers (\"M to M transfers\") to achieve racial balance. Id. at 1223. Although not advancing a specific plan, Joshua used testimony from 31 Judge Woods made 105 specific findings of fact and drew 14 conclusions oflaw to support his determination of the issue of liability. On appeal, the Eighth Circuit affirmed all of those findings of fact and conclusions oflaw. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8th Cir. 1985). -17- i! A072A ,c--o,a,,, two expert witnesses to suggest three options: (1) altering boundary lines in accordance with the NLRSD plan; (2) altering boundary lines to transfer other geographic areas among all three districts; or (3) transferring certain geographic areas to LRSD and having all of the remaining area of PCSSD consolidated with NLRSD. Id. at 1223-24. LRSD advanced a plan that involved the county-wide consolidation of all three school districts. Id. at 1224-25. After considering all of the evidence, Judge Woods concluded that \"a countywide interdistrict remedy must be utilized to correct the countywide interdistrict violation found to exist and that this is the only manner of placing the victims of this discrimination in the position they would have occupied absent the discrimination.\" Id. at 1225. 32 Judge Woods also concluded that the State/ ADE: (a) failed to discharge its affirmative duty to encourage desegregation, which had an interdistrict effect on LRSD, PCS SD, and NLRSD; and (b) had \"remedial responsibilities with respect to this case.\" Judge Woods noted that the \"precise nature of [the State/ADE's] financial and oversight responsibilities must await further refinement of the consolidation plan and development of a budget for such consolidated district.\" Id. at 1228. PCSSD, NLRSD, and the State/ADE appealed Judge Woods' decisions inLRSD, 584 F. Supp. 328, and LRSD, 597 F. Supp. 1220. The Eighth Circuit, sitting en bane, affirmed Judge Woods' finding on liability for interdistrict constitutional violations by PCSSD,'NLRSD, and the State/ ADE, but reversed his remedy of consolidation33 on the ground that, while the interdistrict violations of the Constitution called for an interdistrict remedy, consolidation of the three school 32Tous, the cat had been belled--for the time being. 33Toe cat was not long belled. -18- A0 7 ?A districts was not required. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8th Cir. 1985).34 Rather than remanding the case to the district court for further findings and a detailed remedial decree, the Court spelled out its own interdistrictremedy.35 Id. at 434-36. Although this interdistrict remedy allowed LRSD, NLRSD, and PCSSD to remain autonomous, it called for, among other things: changing boundaries between PCS SD and LRSD; revising attendance zones so that each school would reasonably reflect the racial composition of its district within a permitted variance of plus or minus 25% of the minority race; encouraging intradistrict and interdistrict M to M transfers; and creating a limited number of magnet or specialty schools. Id. at 435-36. The principles of the interdistrict remedy outlined in the majority opinion later became the basis for the desegregation plans that were implemented in each of the three Pulaski County school districts. LRSD proceeded to develop a \"controlled choice\" desegregation plan, which was approved by Judge Woods on February 27, 1987 (docket no. 739). Under this plan, LRSD was divided into two attendance zones of approximately equal racial balance. Students were assigned to schools so that each grade at each school reflected the racial balance within that attendance 34Judge Woods later wrote an article in the Arkansas Law Review critiquing the Eighth Circuit's decision. Judge Henry Woods and Beth Deere, Reflections on the Little Rock School Case, 44 Ark. L. Rev. 971 (1991). 35In a separate opinion, Judge Richard S. Arnold made the following observation about the remedy fashioned by the majority: The District Court (though we are today disagreeing with some ofits conclusions) is presided over by a scholarly and distinguished judge. That court, not this one, is in the best position to write a decree. Instead, a decree today springs full-grown from the brow of this Court, a decree that will, I dare say, startle all the parties to this case, including even those (if there are any) who like what they see. LRSD, 778 F.2d at 437 (Arnold, J., concurring in part and dissenting in part). -19- l\\07?A zone. After a student was assigned to a school, the student's parents could request reassignment to another school within their attendance zone. That request would be granted so long as each school would remain within a range of plus or minus 12.5% of the black student population at the school. The plan also provided for eight magnet schools (four elementary, two junior high, and two high schools), with seats reserved for students of each of the three Pulaski County school districts. The target racial composition of the magnet schools was 50%-50%. Finally, the plan established a Magnet Review Committee, with representatives of each of the three districts, along with a non-voting member representing Joshua and the Knight Intervenors.36 The controlled choice plan was implemented beginning with the 1987-88 school year (docket no. 670). While the controlled choice plan was intended to create racial balance, it resulted in many central and east Little Rock schools having fewer than fifty white students. For that reason and others, Judge Woods later found the plan to be \"ill-conceived.\" LRSD v. PCSSD, 716 F. Supp. 1162, 1188 (E.D. Ark. 1989), rev'd., 921 F.2d 1371 (1990). LRSD submitted a new desegregation plan for the 1988-89 school year, which all parties agreed would be a \"stabilizing year'' to allow LRSD to carefully plan for the 1989-90 school year and beyond. Id. With that understanding, Judge Woods approved LRSD's proposed desegregation plan for the 1988-89 school year. Id. D. The 1990 Settlement Agreement And Settlement Plans After long and difficult negotiations that began in 1988, LRSD, PCSSD, NLRSD, Joshua, and the State/ADE agreed to a global settlement of all aspects of this case. In the spring of 1989, 36The Knight Intervenors are members of the LRSD Classroom Teachers Association. -20- ii A072A the parties submitted the following final settlement documents37 to Judge Woods: (a) The Pulaski County School Desegregation Case Settlement Agreement,38 which, among other things, fixed the State/ADE's total financial liability to the three school districts to be an amount \"not to exceed $129, 750,000\";39 and (b) separate comprehensive \"Settlement Plans\" for LRSD, NLRSD, and PCSSD and a comprehensive \"lnterdistrict Settlement Plan.'\"'0 Judge Woods rejected each of the four separate Settlement Plans41 and the 1990 Settlement Agreement,42 as submitted; 31See footnote 3, supra, for an explanation of the terminology I will use in referring to these settlement documents. 38A copy of the 1990 Settlement Agreement is attached to LRSD's and Joshua's \"Joint Motion\" seeking approval of that agreement (docket no. 1174). 39The 1990 Settlement Agreement contained detailed prov1s1ons governing the State/ADE's role in funding and implementing the separate LRSD, NLRSD, PCSSD, and Interdistrict Settlement Plans. Among other things, the State agreed to pay the three school districts a total of not more than $129,750,000. All of the parties agreed to release all claims against each other and to dismiss this case, with prejudice, as to each party. 40 As indicated previously, these four Settlement Plans contained the detailed desegregation obligations that LRSD, PCS SD, and NLRSD contractually agreed to implement under the district court's supervision. See footnote 3, supra. 41 Judge Woods refused to approve the Settlement Plans because he believed they were \"facially unconstitutional\" and outside the mandate of the Eighth Circuit: In LRSD 's proposed plan almost one-fourth of the elementary schools are contemplated to be all black. The entire mandatory busing burden at the elementary level for desegregation purposes falls on black children. . . . All of the historically \"black\" schools lie east ofUniversity A venue, and all are proposed to be all-black incentive schools. Double funding is promised for the all-black schools. Yet it is impossible to determine from the submissions how the funds will be spent. LRSD, 716 F. Supp. at 1169. 42Judge Woods refused to approve the 1990 Settlement Agreement because it was \"contingent upon legislative approval and a legislative appropriation to fund it. I cannot in good conscience accept this bill as having passed.\" LRSD, 716 F. Supp. at 1 164. -21- ~-0 72A ordered the parties to implement a more comprehensive plan known as the Tri-District Plan; appointed Eugene Reville to the position of Metropolitan Supervisor; and conferred upon Mr. Reville a wide array of powers over all three school districts that, in many respects, closely resembled consolidation--the remedy the Eighth Circuit had previously rejected. LRSD, 716 F. Supp. at 1164-69. Shortly after Judge Woods entered his decision, the Arkansas Legislature passed a bill funding the over $100,000,000 that the State/ADE was obligated to pay to the three school districts under the 1990 Settlement Agreement. Based on this new development, the parties resubmitted the Settlement Agreement to Judge Woods for approval. On December 11, 1989, Judge Woods entered an Order which added certain new conditions to the Settlement Agreement; approved it, as modified; and directed the parties to carry out its terms. LRSD v. PCSSD, 726 F. Supp. 1544, 1549-51 (E.D. Ark. 1989). Judge Woods' December 11 Order also specifically disapproved that portion of the Settlement Agreement which called for LRSD to pay $2,000,000 of the $3,150,000 in attorneys' fees that the parties had agreed to pay to Joshua's counsel. Id. at 1554-56.43 Each of the school districts and Joshua appealed the district court's decisions to the Eighth Circuit, which reversed and remanded the case with instructions to approve the 1990 Settlement Agreement and the four Settlement Plans, as submitted by the parties. LRSD, 921 F.2d 1371. In reaching that decision, the Court made a number of important rulings that have had a profound 43Under the terms of the 1990 Settlement Agreement, Joshua's counsel was to be paid attorneys' fees of $3,150,000, which the parties agreed should be allocated as follows: LRSD: $2,000,000; the State/ADE: $750,000; PCSSD: $300,000; and NLRSD: $100,000. LRSD, 921 F.2d at 1390. -22- influence on future developments in the case. First, the Court noted that the appeal arose from settlements agreed to by all the parties (a \"most important fact\") and that \"[t]he law strongly favors settlements\" which should be \"hospitably'' received: This may be especially true in the present context--a protracted, highly divisive, even bitter litigation, any lasting solution to which necessarily depends on the good faith and cooperation of all the parties, especially the defendants. Id. at 1383. As further support for that conclusion, the Court made the following observation: This is, after all, no ordinary litigation. The NAACP Legal Defense and Educational Fund, its lawyers and its predecessors, have vigorously prosecuted this case and its ancestors for more than 30 years. Absent an extremely good reason--and we have been given none--we are reluctant to disregard their judgment as to what is best for their own clients. Id. at 1386. Second, the Court explicitly recognized theimportantroleof futuremonitoringin the case and the need for it to continue \"for a long time\": \"In the present case, for example, any remedy will necessarily require some judicial supervision--monitoring, at least--for a long time.\" Id. at 13 83 ( emphasis added). The Court also emphasized the importance of the district court ensuring that \"the settlement plans [are] scrupulously adhered to,\" that monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments.\" Id. at 1386. Third, the Court recognized that \"a necessary condition of our holding that the plans are not facially unconstitutional is that the parties' compliance with them will be carefully monitored.\" Id. at 1388. Therefore, the Court directed the creation of the ODM ''to be headed by a Monitor appointed by the District Court, with such additional personnel as the District Court shall deem appropriate.\" Id. -23- A07.2A_ Finally, the Court reversed Judge Woods' decision on attorneys ' fees and awarded counsel for Joshua $3,150,000, the full amount of attorneys' fees provided for under the Settlement Agreement. These attorneys' fees were allocated and payable among the parties as follows: LRSD ($2,000,000);44 State/ ADE ($750,000); PCS SD ($300,000); and NLRSD ($100,000). Id. at 1390. In an Order entered July 6, 1990, Judge Woods concluded that, because he was \"unable to successfully implement a plan to bring equity to the children of this county under the restrictions imposed by the Court of Appeals,\" the time had come \"for another judge to assume the burden of this litigation since it is my unalterable decision to recuse.\" LRSD v. PCSSD, 740 F. Supp. 632, 636 (E.D. Ark. 1990). Later that day, the case was reassigned, by random selection, to the Honorable Susan Webber Wright (docket no. 1373). E. LRSD's Implementation Oflts Desegregation Obligations Between 1991 And 1995 Section IV of the Settlement Agreement explicitly provided that the State/ADE \"conditions this settlement upon its dismissal from this Litigation with prejudice in accordance with the terms of Attachment A.\" Attachment A was a \"Release of All Claims Against the State,\" pursuant to which all parties to this litigation released all claims they might have against the State/ ADE relating \"to racial discrimination or segregation in public education in the three school districts in Pulaski County, Arkansas or to the violation of constitutional or other rights of school children based on race or color in the three school districts in Pulaski County, Arkansas.\" Attachments B, C, and D were identical releases that ran in favor of LRSD, PCSSD, and \"\"The State/ADE agreed to advance LRSD's share of these attorneys' fees, which were to be deducted from payments the State/ADE owed LRSD under Section VI of the Settlement Agreement. LRSD, 921 F.2d at 1390. -24- A072A /gp-'L8Ja2}__ NLRSD. Finally, Attachments A, B, C, and D each contained the same language providing that this action (LR-C-82-866) \"is to be dismissed with prejudice\" as to the State/ ADE, LRSD, PCSSD, and NLRSD. Thus, the Settlement Agreement expressly provided for the dismissal of this case, with prejudice, \"except that the Court may retain jurisdiction to address issues regarding implementation of the Plans. \" Attachments A, B, C, and D to the Settlement Agreement (docket no. 1174) (emphasis added). On the date the Eighth Circuit entered its decision approving the 1990 Settlement Agreement and Settlement Plans, only the State/ ADE had moved to be dismissed, with prejudice, as a party to this action.45 Thus, one of Judge Wright's first rulings in this case was a January 18, 1991 Order that: (1) dismissed the State/ADE as a party to this action \"pursuant to the terms of the parties' settlement agreement\"; and (2) converted the Office of Metropolitan Supervisor to the ODM, which she \"vested with the authority to monitor the school districts' compliance with the settlement plans and settlement agreement, including any future modification of, or addition to, such plans and agreements\" ( docket no. 1418). Ann Marshall, Anna Hart, Polly Ramer, and Linda Bryant, all of whom previously worked for Mr. Reville in the Office of Metropolitan Supervisor, were allowed to \"continue in their present positions subject to the later approval of 45ln its December 12, 1990 decision approving the 1990 Settlement Agreement and four separate Settlement Plans, the Eighth Circuit directed the district court to \"enter a fresh order dismissing the State as a party pursuant to the terms of the parties' settlement agreement.\" LRSD, 921 F .2d at 1394. Under the explicit language of the Settlement Agreement, LRSD, PCSSD, and NLRSD were each entitled to the entry of a similar order dismissing them, with prejudice, as parties to this action. Forreasons that are not apparent from a review of the record, LRSD waited until November 30, 1995, to move for an order dismissing this case with prejudice (docket no. 2573). See discussion infra at pp. 31-32. On January 26, 1998, Judge Wright entered an Order ( docket no. 3109) pursuant to which LRSD was dismissed, with prejudice, as a party to this action and the case was administratively terminated ( docket no. 3110). -25- An\"'\"\" the court-appointed monitor.\" In a Memorandum Opinion entered February 28, 1991 ( docket no. 1442), the district court made it clear that, even though the State had now been dismissed as a party, it remained obligated to comply with its settlement obligations, which \"when understood in conjunction with the language in both the Eighth Circuit's order of December 12, 1990, and this Court's order of January 18, 1991, also obligate the State to continue funding the ODM\" by making the annual contribution of $200,000 required in Judge Woods' June 27, 1989 Order.46 Likewise, LRSD, NLRSD, and PCSSD were required to continue their annual funding of the ODM on a per pupil pro-rated basis. On April 5, 1991, Judge Wright entered a Memorandum and Order(docket no. 1459) that appointed Ms. Ann Marshall Desegregation Monitor, at an annual salary of$98,000.47 46In an Order entered August 18, 1993 ( docket no. 194 7), Judge Wright emphasized that, while the State/ ADE was no longer a formal party in this action, \"it is the law of the case that the Court retains jurisdiction to ensure that the parties, including the State, comply with the terms of the settlement agreement as well as the settlement plans.\" In an Order entered December 10, I 993 ( docket no. 2045), Judge Wright held that the State agreed not only to the obligations contained in the 1990 Settlement Agreement, but also to the obligations contained in.the May 31, 1989 letter from its counsel, H. William Allen, which is referred to in Secti0n III of the 1990 Settlement Agreement as the \"Arkansas Department of Education monitoring plan.\" In their pleadings, the parties often refer to this latter document as \"the Allen letter.\" 47The first budget Judge Woods approved for the Office of Metropolitan Supervisor was for fiscal year July 1, 1989, to June 30, 1990. That budget totaled $353,710.24 and included Mr. Reville's salary of $98,500, plus the salary and overhead for four other employees (docket no. 1246). Over the next ten years, the budget for the ODM more than doubled to reach $784,188 for fiscal year 2000-01. The staffing of the ODM also more than doubled to reach ten employees. As indicated previously, under the 1990 Settlement Agreement, the State/ADE was required to pay $200,000, annually, as its share of the cost of the ODM. The balance of the ODM budget was paid by LRSD, PCSSD, and NLRSD on a pro-rata basis that was calculated based upon the percentage of students in Pulaski County who attended each of the three school districts. For example, the ODM's 2000-01 fiscal year budget of$784,188 was allocated among the parties as follows: -26- A072A During the first few months of 1991 , LRSD, PCSSD, NLRSD, and Joshua entered into negotiations that resulted in numerous modifications to the 1990 Settlement Plans. It was the parties' position that they were authorized to make those changes based upon language in the Eighth Circuit's December 12, 1990 decision providing that the parties were \"free, by agreement, to modify the settlement plans .. . subject, of course, to the approval of the District Court.\" LRSD, 921 F.2dat 1393 n. 15. Subsequently, the parties submitted the modified Settlement Plans to the district court for approval. On June 21, 1991 , Judge Wright entered a Memorandum and Order rejecting all of the $784,188 - 200,000 (State/ADE payment) $584,188 LRSD's share (47.64% of total Pulaski County enrollment) PCSSD's share (35 .36% of total Pulaski County enrollment) NLRSD's share (I 7.00% of total Pulaski County enrollment) $278,307.16 206,568.88 99,311.96 $584, I 88.00 On September 28, 2001 , Judge Wright entered an Order ( docket no. 3 522) approving the ODM's budget for the current fiscal year, which is $707,071, This budget included a 5% pay raise for all employees, which totaled $21,042. Ms. Marshall's salary increased from $111,131 to $116,688 (docket no. 3509). Since the creation of the ODM, the district court has approved the following budgets: I. 1989-90 $353,710.24 (docket no. 1246) 2. 1990-91 $293,833.74 (docket nos. 1391 \u0026amp; 1405) 3. 1991-92 $591,557.52 (docket no. 1497) 4. 1992-93 $578,060.81 (docket nos. 1822 \u0026amp; 1836) 5. 1993-94 $646,617.00 (docket nos. 2055 \u0026amp; 2155) 6. 1994-95 $661 ,768.00 (docket nos. 2359 \u0026amp; 2380) 7. 1995-96 $631 ,273.00 (docket nos. 2567 \u0026amp; 2599) 8. 1996-97 $730,756.00 (docket nos. 2852 \u0026amp; 3001) 9. 1997-98 $730,716.00 (docket nos. 3158 \u0026amp; 3167) 10. 1998-99 $751 ,639.00 (docket nos. 3158 \u0026amp; 3167) 11. 1999-00 $764,872.00 (docket nos. 3361 \u0026amp; 3364) 12. 2000-01 $784,188.00 (docket nos. 3361 \u0026amp; 3364) 13. 2001-02 $707,071.00 (docket nos. 3509 \u0026amp; 3522) Thus, in the twelve years since its creation, the ODM has requested that LRSD, PCS SD, NLRSD, and the State/ADE pay for budgets totaling $7,932,228.57. As the largest of the three school districts, LRSD has been required to pay approximately 35% of the total cost of the ODM. -27- \"legion of proposed modifications\" to the Settlement Plans on the ground that they fell \"outside the narrow realm of modifications and adjustments deemed permissible by the Eighth Circuit [in its December 12, 1990 decision].\" LRSD, 769 F. Supp. at 1483, 1489.48 On July 15, 1991, the district court entered a lengthy Memorandum and Order denying the parties' motion to reconsider its rejection of their proposed modifications to the 1990 Settlement Plans. LRSD, 769 F. Supp. 1491. In doing so, Judge Wright made it clear that: (a) she disagreed with the parties' position that the Settlement Plans are \"fluid, open to continual and considerable revision as long as the parties agree and the changes are not facially unconstitutional\"; and (b) she viewed the Eighth Circuit's approval of the Settlement Plans as being \"akin to establishing a benchmark ... a sure guide for ending this dispute and getting the parties out of court.\" Id. at 1494. LRSD, NLRSD, PCSSD, and Joshua appealed on the ground that the district court's decisions \"confined them within limits that are too narrow, and that all of their proposed changes, being constitutional, workable, and fair, should have been approved.\" 48 Among the changes the parties sought to make in the four 1990 settlement plans were the following: (1) deleting from PCSSD's settlement plan major portions of the section on special education, especially concerning handicapped children; (2) eliminating provisions in PCSSD's settlement plan addressing issues related to black students being disciplined disproportionately; (3) removing several programs from PCSSD's settlement plan aimed at improving student achievement; (4) deleting from PCSSD's settlement plan the parties' agreement to abide by fourteen \"guiding principles\" which apply to the \"process of permanent plan development\"; (5) eliminating from LRSD's settlement plan science and social studies as core areas emphasized in remediation programs at the secondary level; (6) changing LRSD's settlement plan to limit the four-year-old program originally scheduled for all schools by 1993-94 to only eleven schools, with a promise that a \"long-range implementation plan will be developed for additional four-year-old classes\"; (7) changing LRSD's settlement plan to delay the development of parent home study guides and computer managed instructional technology for tracking student progress; (8) changing LRSD' s settlement plan by eliminating staff positions for program specialist and specialist for alternative classrooms; and (9) changing the interdistrict plan to reduce from six to four the number of interdistrict schools planned for the future. LRSD, 7 69 F. Supp. at 1484-87. -28- I A072A / C-uo/oo.\\.. Appeal ofLRSD, 949 F.2d at 255. In affirming in part and reversing in part, the Eighth Circuit noted that \"[t]here is much in the District Court's opinions with which we agree,\" including the observation that the 1989 settlement \"should indeed be a benchmark for the future path of this case.\" Id. However, the Court went on to hold that the district court was \"too strict with itself' in not allowing the parties to modify details of those settlement plans that did not affect the three school districts' \"major substantive commitments to desegregation\": The desegregation obligations undertaken in the 1989 plan are solemn and binding commitments. The essence and core of that plan should not be disturbed . . . . If a question is truly one only of detail, not affecting the major substantive commitments to desegregation, the District Court has the authority to consider it. Id. at 256.49 Finally, to provide guidance to the district court, the Eighth Circuit set forth seven elements that form the \"essence and core\" of the Settlement Plans and from which there can be \"no retreaf': It may be helpful for us to state those elements of the 1989 plan that we consider crucial, and with respect to which no retreat should be approved. They are as follows: (1) double funding for students attending the incentive (virtually all-black) schools; (2) operation of the agreed number of magnet schools according to the agreed timetable; (3) operation of the agreed nlJffiber of interdistrict schools according to the agreed timetable; (4) intradistrict desegregation of PCS SD according to the agreed timetable; (5) the agreed effort to eliminate achievement disparity between the races; ( 6) the agreed elements of early-childhood education, at least in the incentive schools; and (7) appropriate involvement of parents. 49 As indicated supra at footnote 3, the district court and the parties generally have referred to the 1989 settlement documents as the 1990 Settlement Agreement and the 1990 Settlement Plans because the Eighth Circuit did not approve those settlement documents until December 12, 1990. Regardless of the year used to reference these documents, the Eighth Circuit and the district court are referring to the same Settlement Agreement and Settlement Plans. -29- AOZ2A Id. ( emphasis added). On May 1, 1992, Judge Wright entered an Order approving most of the proposed modifications to LRSD's 1990 Settlement Plan and the Interdistrict Settlement Plan, which the parties referred to as \"LRSD's May 1992 Desegregation Plan\" and the \"May 1992 Interdistrict Desegregation Plan.\" Judge Wright attached copies of both of these Plans to her May 1, 1992 Order (docket no. 1587). LRSD's implementation of its obligations under the 1992 Plans did not always go smoothly. For example, on March 19, 1993, Judge Wright delivered a strong statement to LRSD's School Board and attorneys explaining the importance ofLRSD fully and completely implementing its desegregation obligations under the Settlement Plans: Since the time of victory by the Little Rock School District in this case, when the Court of Appeals granted almost every facet 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. * * * 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. Judge Wright's Statement to LRSD Board members and Counsel at 2-3 and 6, attached as -30- A072A Exhibit I to docket no. 2730.50 Between 1991 and 1996, almost all of the district court's Orders involving LRSD related to the following issues: the approval ofLRSD's annual budgets (docket nos. 1759, 1897, 1958, 2216, 2280, 2319, and 2709); LRSD's closing of certain elementary schools (docket nos. 1926 and 2351); and LRSD's designation and construction of the interdistrict and magnet schools called for under the Settlement Plans ( docket nos. 1550, 1832, 1848, 1895, 2225, and 2329). During this period of time, the Eighth Circuit also entered several important decisions that: ( 1) extended school district millages under the 1990 Settlement Agreement, LRSD v. PCSSD, 971 F .2d 160 (8th Cir. 1992); (2) upheld the new zoning plan for electing school board members for LRSD and PCSSD, LRSD v. PCSSD, 56 F.3d 904 (8th Cir. 1995); and (3) clarified language in the 1990 Settlement Agreement regarding the State's funding obligations to LRSD, PCS SD, and NLRSD, LRSD v. PCSSD, 83 F.3d 1013 (8th Cir. 1996). On November 30, 1995, LRSD filed a Motion for Order of Dismissal ( docket no. 2573), requesting the district court to dismiss this case, with prejudice, pursuant to Attachment B to the 1990 Settlement Agreement.51 Attachment B stated, in pertinent part: It is further understood and agreed that the litigation now pending in United States District Court for the Eastern District of Arkansas, :Western Division, entitled Little Rock School District v. Pulaski County Special School 50In People Who Care v. Rockford Board of Education, 246 F.3d I 073, 1078 (7th Cir. 2001 ), Judge Posner observed that \"state and local officials are under no duty to love the chains that federal judges, however justifiably, fasten upon them.\" In this case, it is more than a little ironic that LRSD has forged each link in the chains that have bound it for the last thirteen years. 51 As indicated previously, Attachment Bis a fully executed Release pursuant to which all parties agreed to release any and all claims they had against LRSD arising from or relating to this litigation. -31- A072A ~ ._a _JOftL.___.. District No. I, et al., No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clark v. Board of Education of Little Rock School District (the \"Litigation\") is to be dismissed with prejudice as to the LRSD and the former and current members of its board named in the Litigation. This dismissal is final for all purposes except that the Court may retain jurisdiction to address issues regarding the implementation of the Plans. Attachment B to the 1990 Settlement Agreement ( docket no. 1174). In seeking that relief, LRSD acknowledged that the dismissal would not affect the district court's jurisdiction to address issues regarding the implementation of its . desegregation obligations or to conduct proceedings to enforce the terms of the Settlement Agreement or the terms of the Settlement Plans. On March 11 , 1996, the district court entered a Memorandum and Order ( docket no. 2640) denying LRSD's Motion for Order of Dismissal on the ground that: The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects ofits 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 complexity of this case are such that this Court's monitoring function would be impaired by entering an order of dismissal at this time. LRSD appealed that decision to the Eighth Circuit. I On December 15, 1997, the Court reversed and retiianded the case to the district court with instructions to enter an order dismissing the case with prejudice, as provided for under the terms of the 1990 Settlement Agreement. LRSD v. PCSSD, 131 F.3d 1255 (8th Cir. 1997). In reaching this decision, the Court stated the following: Although we can well understand the frustration the district court has experienced over the years in carrying out our instructions, we conclude that the District's motion should have been granted. As we held in our 1992 decision, the terms of the settlement agreement became the law of the case. See Little Rock -32- I I : I A072A School District, 971 F.2d at 165. As the agreement specifically provides, the district court is permitted (and indeed must, in order to comply with our instructions), to retain jurisdiction to address issues regarding the implementation of the desegregation plans. Moreover, the desegregation plaintiffs may bring proceedings to enforce the terms of the settlement agreement and the terms of the desegregation plans. In short, the entry of such an order would do nothing to relieve the three districts of their continuing obligation to honor their commitments as set forth in the settlement agreement and the plans. Id. at 1257-58 (footnote omitted). On January 26, 1998, the district court entered an Order ( docket no. 3109) that dismissed this case and \"cases consolidated herein, including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clarkv. Board of Education ofLRSD,\" with prejudice, as to LRSD and \"its current and former board members named in this litigation.\" The district court also entered a Memo to the File ( docket no. 3110) stating that, because the Plaintiff in this case was dismissed with prejudice, \"the Clerk is instructed to administratively terminate this case,\" but to \"keep the case files open and in their current location in the Clerk's office\" so that the Court can continue to perform its ongoing duties regarding the supervision and implementation of the desegregation plans. F. Joshua's Request For An Interim Award Of Attorneys' Fees For Performing Monitoring Activities After The 1990 Settlement On November 22, 1995, counsel for Joshua moved for an interim award ofattomeys' fees and costs in the amount of $805,611.81 for monitoring work performed after the Eighth Circuit approved the settlement of this case on December 12, 1990 ( docket no. 2565). Counsel for Joshua later reduced the amount of this request to $795,301.81 ( docket no. 2791) and argued that it should be apportioned among the three Pulaski County school districts as follows: LRSD: 75% to 80%; NLRSD: 5% to 10%; and PCS SD: 15% to 20%--with the final percentages totaling -33- ~-072A 100% (docket no. 2792). LRSD filed a Response and Supporting Memorandum of Law (docket nos. 2636 and 2637) challenging Joshua's right to be awarded any attorneys' fees or costs for post-settlement monitoring activities. LRSD argued that, as a part of the consideration for LRSD paying Joshua's counsel $2,000,000 in attorneys' fees in connection with the 1990 settlement, Joshua's counsel had specifically agreed, on the record, that they would not seek future fees from LRSD for monitoring activities during the life of the settlement plans. In support of its position, LRSD relied upon the following colloquy between counsel and the Eighth Circuit appellate panel during oral argument in LRSD, 921 F.2d 1371 : NORMAN CHACHKIN, ATTORNEY FOR JOSHUA INTERVENORS: I just want to make one other observation and Mr. Heller can confirm this. Although it is not written into the settlement agreement we are happy to confirm it here and to be bound by it. The agreement between Little Rock and Joshua was that the fee payment from the Little Rock School District would also cover out of the court monitoring activities by the attorneys for Joshua during the life of the settlement plans so long as it wasn't necessary to go back to court. If the settlement plans go forward as Mr. Walker suggested, the parties are committed to a monitoring system and committed to working together to ease any implementation problems and avoid any difficulties. That 's going to take attorney time. We have committed to Little Rock that we will not seek any fees from them for those activities unless it is necessary to go back to court for enforcement purposes and in that instance we '11 simply be free to make an application if we think we 're entitled to it. JUDGE RICHARD S. ARNOLD: Alright, thank you. Now, Mr. Heller, you are recognized. -34- ~ _ AO_Z2A_ CHRIS HELLER, A TIORNEY FOR LRSD: * * * I'd like to confirm what Mr. Chachkin said about the agreement. Because of the responsibilities assigned to the Joshua Intervenors in our settlement plans, there is significant work for them to do over the next six or seven years, and our agreement on the fees did contemplate that there would [be] no further payment for that work. (Emphasis added.) In a Memorandum Opinion and Order (docket no. 2821) filed on September 23, 1996, Judge Wright concluded that LRSD and Joshua contractually agreed that the $2,000,000 in attorneys' fees paid by LRSD in connection with the 1990 settlement also covered all monitoring activities performed by Joshua's counsel during the life of the Settlement Plans. Therefore, Judge Wright ruled that Joshua's counsel was not entitled to recover any attorneys' fees from LRSD for performing monitoring activities. On October 3, 1996, Joshua's counsel filed a Motion for Reconsideration of Fee Petition (docket no. 2833) and supporting Memorandum of Law (docket no. 2834), in which he urged the district court to award attorneys' fees under the \"bad faith\" exception to .the general rule that, absent a statute or enforceable contract, litigants must pay their own attomeys'.fees. On March 24, 1997, Judge Wright entered an Order (docket no. 2959) denying Joshua's Motion for Reconsideration. On April 22, 1997, counsel for Joshua filed a Notice of Appeal (docket no. 2966) of the district court's March 24, 1997 Order denying his request for interim attorneys' fees. I will return to discuss the final resolution of this issue later in this decision. -35- A072A G. LRSD's First Attempt To End Federal Court Jurisdiction On May 17, 1996, LRSD filed a Motion to End Federal Court Jurisdiction (docket no. 2665) and supporting Brief (docket no. 2666). In these pleadings, LRSD argued that: (1) it was only required to implement its desegregation obligations under its Settlement Plan and the Interdistrict Settlement Plan for six years; (2) it had implemented the Settlement Plan, beginning 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''; and (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 ofLRSD's desegregation obligations shows that LRSD is in substantial compliance with the Plans.\" Docket no. 2665. On August I, 1996, Joshua filed a Memorandum Opposing LRSD's Motion to End Federal Court Jurisdiction (docket no. 2730) in which they challenged LRSD's contention that the 1990 Settlement Plans called for a six-year implementation period. In support of their position, Joshua pointed out that no provision in any of the settlement documents limited LRSD's implementation of its desegregation obligations to six years. Joshua also argued that LRSD had failed to discharge its burden of establishing \"the requisite implementation of the court-approved settlement.\" On September 23, 1996, Judge Wright entered a Memorandum and Order (docket no. 2821) denying LRSD's Motion to End Federal Court Jurisdiction on the grounds that: (1) the 1990 Settlement Agreement and Settlement Plans do not contain any provision that allowed LRSD to terminate \"its duty to comply with the settlement plans after ... six years;\" and (2) -36- LRSD failed to provide sufficient evidence that it had \"substantially complied\" with its obligations under the Settlement Plans. The district court went on to urge LRSD and Joshua to modify ''the parts of the plan that are ineffective or unworkable\" so that LRSD could better position itself to argue that it is entitled to unitary status and relief from court supervision: Instead of presenting substantial evidence of its compliance with its goals as set forth in the plan, the LRSD submits arguments that it has achieved unitary status because data from the LRSD compares favorably with data from districts which have been declared unitary. The Court would be inclined to agree with the LRSD with respect to many of these arguments if the LRSD were not contractually bound by the plan which it voluntarily adopted. The Court has encouraged the parties to consider modifying those parts of the plan that are ineffective or unworkable. The Court has provided the parties with the testimony of experts to assist in the modification process. Instead, the LRSD has used the testimony of these experts to ask the Court to end Court jurisdiction without first proceeding with plan modifications. The Court cannot so easily relieve the district of its contractual obligations. Once again the Court invites the parties to follow procedures to modify the parts of the plan that are ineffective or unworkable. Docket no. 2821 at 12 (emphasis in original). On December 6, 1996, LRSD filed a Motion for Approval of Plan Development Period ( docket no. 2878) that requested Judge Wright: (I) to allow a six to nine month period for LRSD to concentrate its efforts to develop plan modifications to improve education and desegregation within the district; (2) to allow LRSD to use the ODM as a consultant to participate in the development of plan modifications in areas such as budget development, staff development, student assignments, and resolution of discipline issues; and (3) to withhold any further monitoring of the LRSD desegregation plan during this six to nine month period. In support of its Motion, LRSD noted that the Knight lntervenors, PCSSD, and NLRSD supported its request. -37- A072A ~ - LB,,_v_ On December 18, 1996, Joshua filed a Response ( docket no. 2891) that did not oppose LRSD's request for an interval of time to develop a new desegregation plan, but expressed reservations about ODM, \"as an ann of the court,\" participating in the negotiations between the parties. Joshua also urged Judge Wright to appoint additional monitors to work on a matter of particular concern to them--the alleged \"ill-treatment of class members.\" On December 27, 1996, Judge Wright entered an Order (docket no. 2901) granting LRSD's Motion. In this Order, Judge Wright held that: (1) LRSD \"will benefit from a temporary hiatus from monitoring and from the expertise of the ODM, in order to develop proposed modifications to the LRSD desegregation plan\"; and (2) ODM can advise LRSD and other parties during the negotiations for plan modifications and ODM can \"participate in negotiations as a facilitator,\" but \"ODM cannot be a negotiator for any party.\" Judge Wright also denied Joshua's request to hire \"additional monitors to handle complaints about mistreatment of class members.\" December 27, 1996 Order at 3 (docket no. 2901). H. The Perplexing Final Resolution Of Joshua's Request For Still More Attorneys' Fees FromLRSD On September 26, 1997, LRSD filed a Motion for Approval of Revised Desegregation and Education Plan ( docket no. 3049) and a supporting Memorandum Brief ( docket 1.10. 3050). After Joshua objected to a number of provisions in the proposed revised plan, LRSD and Joshua engaged in extensive negotiations to develop a revised plan which both parties could support. As part of these negotiations, LRSD and Joshua took up the still unresolved issue of Joshua's request for $795,301 in attorneys' fees for performing post-settlement monitoring -38- : I ' ' A072A activities, which was pending on appeal to the Eighth Circuit. 52 On January 21, 1998, LRSD and Joshua filed a Joint Motion for Approval ofLRSD's Revised Desegregation and Education Plan ( docket no. 3107) in which they admitted that ongoing negotiations were taking place on the attorneys' fees issue: \"Joshua has agreed that they will request that the Court of Appeals for the Eighth Circuit hold their two pending appeals in abeyance, and LRSD and Joshua have further agreed that they will attempt to resolve Joshua's past, present, and future claims for attorneys' fees and costs by mediation.\" January 21, 1998 Joint Motion at 2 ( docket no. 3107). See also Renewed Joint Motion for Approval ofLRSD's Revised Desegregation and Education Plan filed on March 23, 1998 (docket no. 3136). On February 27, 1998, the Eighth Circuit entered a Mandate (docket no. 3125) which granted \"the stipulation of the parties for dismissal of the appeal\" of Judge Wright's March 24, 1997 Order denying Joshua's request for interim attorneys' fees. The entry of this voluntary Judgment dismissing Joshua's appeal of the attorneys' fees issue strongly suggests that, sometime prior to February 27, 1998, LRSD and Joshua arrived at a settlement of that issue. In a letter agreement dated June I 0, 1998, 53 LRSD and Joshua formally documented their 52 As indicated previously, on April 22, 1997, Joshua appealed Judge .Wright's Order denying their requested interim attorneys' fees ( docket no. 2966). At the time the parties entered into these negotiations, that appeal was still pending before the Eighth Circuit. 53The first time this letter agreement became part of the record in this case was on March 15, 2002, when LRSD attached it as Exhibit 7 to its Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). Thus, before her decision to step down in this case, Judge Wright was never made aware of the facts surrounding the agreement that LRSD would pay Joshua's counsel $700,000 in attorneys' fees for past monitoring work, plus $48,333.33 per year for three years of future monitoring work. Furthermore, absent LRSD 's decision to make the June 10, 1998 letter part of the record, I would have very likely missed the troubling implications associated with the confluence of agreements on both the Revised Plan and the issue of Joshua's past and future attorneys' fees. Therefore, my -39- A072A settlement of all past and future claims for attorneys ' fees and costs as follows: LRSD will make the following payments [to counsel for Joshua] for past fees and costs: $100,000.00 on or before June 30, 1998; $100,000.00 on or before August 31, 1998; and $500,000.00 on or before October 31 , 1998. For fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan, LRSD will reimburse your firm up to $48,333.33 per year for three years beginning July 1, 1998. The payments described in this letter will constitute full and complete payment in satisfaction of all past or future claims for attorney's fees and costs except as specifically set forth in the Revised Desegregation and Education Plan. June 10, 1998 letter agreement, attached as Exhibit 7 to LRSD's Memorandum Briefin Support of Motion for an hnmediate Declaration of Unitary Status ( docket no. 3581) ( emphasis added). 54 Although not directly relevant to the issue of unitary status, I can think of no good explanation for LRSD's decision to voluntarily pay Joshua's counsel an additional $700,000 in attorneys' fees for performing monitoring work for which Judge Wright had ruled he was not entitled to be paid anything from LRSD. On top of this, one of Joshua's own attorneys, Mr. Chachkin, previously had admitted during oral argument before the Eighth Circuit that the attorneys' fees paid under the 1990 Settlement Agreement included future attorneys' time raising this issue now, based upon facts that were not known to Judge Wright w!Jile she presided over this case, should in no way be construed as a criticism of Judge Wright for not raising this issue earlier. As I have emphasized, it was LRSD's decision to file its counsel's June 10, 1998 letter as an exhibit to its March 15, 2002 Memorandum Brief in Support of Motion for an hnmediate Declaration of Unitary Status that alerted me to this issue. 54As indicated previously, Joshua's counsel argued to Judge Wright that LRSD should be allocated 75% to 80% of his $795,301 in attorneys' fees associated with performing past monitoring activities ( docket no. 2792). If those attorneys' fees had been allocated on that basis, LRSD would have been responsible forpayingJoshua's counsel between $596,475 and $636,240. I am at a loss to understand why LRSD would agree, in the June l 0, 1998 letter, to voluntarily pay Joshua's counsel $700,000, almost $ I 00,000 more than the median amount Joshua's counsel originally sought to recover from LRSD for his post-settlement monitoring work. -40- A072A 113eYA/ expended in connection with monitoring activities.55 It appears to me that Judge Wright's wellreasoned Memorandum Opinion (docket no. 2821) denying Joshua's Request for an Interim Award of Attorneys' Fees and her subsequent Order (docket no. 2959) denying Joshua's Motion for Reconsideration placed LRSD in an excellent position to prevail on Joshua's appeal of the district court's rulings to the Eighth Circuit. Holding what seemed to be the winning hand on appeal, I find it passing strange that LRSD would voluntarily agree to pay Joshua's counsel an additional $700,000 for post-settlement monitoring work when, as stated above, one of Joshua's other attorneys admitted this work was already included in the $2,000,000 LRSD paid to Joshua's counsel under the 1990 Settlement Agreement. I find it somewhat discomforting that LRSD and Joshua had a meeting of the minds on an essentially new desegregation settlement plan at the same time their attorneys were discussing the settlement of Joshua's counsel's request for a large interim award of attorneys' fees. However, I know of no facts establishing that the simultaneous negotiation of those two unrelated issues did not take place at arms length or involved a quid pro quo. From the inception of this case, Joshua's counsel has fought hard for his clients and has a well-documented record of zealously protecting their interests. I also rec~gnize that Joshua's counsel has manned the barricades of civil rights litigation in Arkansas for over four decades and that he has a reputation for never yielding on matters of principle. Accordingly, while I do not conclude that anything improper occurred in the simultaneous negotiation of these two unrelated issues, I do have a real concern about the public's perception of the timing of these events--which I fear has raised troubling questions and lingering doubts. 55See supra, pp. 34-35. -41- I also find it unsettling that, going forward, LRSD agreed to pay Joshua's counsel ''up to $48,333.33 per year for three years beginning July 1, 1998,\" for \"fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan.\" June 10, 1998 letter agreement, attached as Exhibit 7 to docket no. 3581. At a minimum, all of the terms and conditions of such an unusual arrangement should have been spelled out in writing, with a clear statement regarding the duties, if any, that Joshua's counsel owed to LRSD, the party paying his fees formonitoringthe implementation of the Revised Plan, and whether, under this arrangement, LRSD and Joshua's counsel entered into an attorney-client relationship. In any case, at least one thing is clear from the June 10, 1998 letter agreement: In exchange for being paid $4,027.78 per month by LRSD, Joshua's counsel specifically agreed to undertake the obligation of monitoring all aspects ofLRSD's implementation of the Revised Plan. Subsequently, Joshua's counsel submitted to LRSD periodic \"Statements for Legal Services Rendered\" for attorneys' fees incurred in connection with his work \"implementing and monitoring\" the Revised Plan.56 See Exhibit 8 to docket no. 3581. According to Joshua's counsel's periodic statements for legal services, LRSD paid him a total of $124,861.15, which was billed in the following installments: July, 1998, through October, 1998: $16,111.12; November, 1998, through October, 1999: $48,333.33; November, 1999: $4,027.78; December, 1999: $4,027.78; January, 2000, through May, 2000: $20,138.90; June, 2000: $4,027.78; July, 2000: $4,027.78; August, 2000, through September, 2000: $8,055.56; October, 2000: $4,027.78; 56As discussed infra at pp. 57-59, at no point between the district court's approval of the Revised Plan on April 10, 1998, and thefilingofLRSD's Compliance Report on March 15,2001, did Joshua's counsel ever raise any of the compliance issues that are now before me, pursuant to 8.2 through 8.2.5 of the Revised Plan. -42- A072A November, 2000: $4,027.78; December, 2000: $4,027.78; and January, 2001: $4,027.78. See Exhibit 8 to docket no. 3581.57 Thus, for each month between July, 1998, and January, 2001, LRSD paid Joshua's counsel $4,027.78 for attorneys' fees incurred \"monitoring\" LRSD's implementation of the Revised Plan. For good reason, there is a widespread public perception that this case has become a decades-old cottage industry--and a large one at that--for lawyers. Over ten years ago, in Judge Woods' decision to step down from this case, he decried \"the many appeals perfected in this case, some of which have accomplished nothing but enrichment of the participating attorneys,\" and called the lawyer fees paid by the three districts \"grossly exorbitant.\" LRSD, 740 F. Supp. at 635. Since that time, things appear to have changed little, with all three school districts paying substantial annual attorneys' fees to their own lawyers and substantial annual payments to the ODM, whose requested annual budget for the last several years has been in the range of$700,000. At the same time, the threat of paying large future attorneys' fees to Joshua's counsel hangs like the sword of Damocles above the heads of all the parties.58 57The record fails to contain an explanation of why Joshua's counsel did not submit \"Statements for Legal Services Rendered\" for the months of February thr01;igh June, 2001. 58As everyone knows, Arkansas is one of the poorest states in the country and has always had difficulty finding funds for public education. Although LRSD is better off than many school districts in the State, it is by no means affluent. Like other school districts, it struggles each year to make ends meet. For example, during the last few years, the Arkansas Democrat-Gazette has reported on the need for the repairorrenovation of the basic infrastructure in many LRSD schools and on school teachers who have been forced to purchase pencils and other basic school supplies for their students. By my calculations, since 1990, counsel for Joshua has been paid $3,974,861 ($3,150,000 + $700,000 + $124,861). Over that same period of time, I would guess LRSD, PCSSD, and NLRSD have paid their own attorneys a total of at least $4,000,000. If my estimate is correct, that means, since 1990, the attorneys for all parties in this case have been paid at least $8,000,000. As indicated, supra at footnote 47, the ODM has submitted budgets totaling $7,932,228.57. -43- I- A072A ~ /RAV R/R?I All members of the professional group, who have directly benefitted from the perpetuation of this case, are placed on notice that I intend to monitor closely the costs associated with this action. Being born and raised in Scott County, one of the poorest counties in Arkansas, I understand the meaning ofbeing careful with a dollar, and I expect the professional group to keep that important point fixed in their minds from here on out. Thus, since 1990, the \"professional group\" in this case probably has been paid close to $16,000,000. Counsel for LRSD, Joshua, and the staff of the ODM know that LRSD grapples annually with funding and budget issues. They also know that the approximately $16,000,000 paid to them since 1990 has come from funds earmarked for the school children of this district. In making this observation, I in no way mean to imply that lawyers and monitors have not been necessary to ensure that LRSD, NLRSD, and PCSSD properly implemented and \"scrupulously adhered to\" their desegregation obligations under the Settlement Plans. My only point is that I would have hoped this \"professional group\" would have kept uppermost in their minds that every penny paid to them for their work in this case is one less penny available to help in the education of a child. Thus, I would have also hoped that the \"professional group\" would have been as frugal and judicious as possible in the expenditure of their time or budgeted funds. One of the ways the attorneys could have kept this covenant with the district's school children would have been to discount their normal hourly billing rates. In the case of the ODM, it might have foregone raises and minimized staff and office space requirements in the interest of bringing this case to a close as economically as possible. My review of the pleadings since 1990 has dashed all such utopian hopes. For example, Judge Woods cited the \"grossly exorbitant\" lawyer fees paid by the three school districts as the \"principal reason for [their] poor financial situation\" and noted that LRSD' s attorneys had billed \"31 days in a 30-day month.\" LRSD, 740 F. Supp. at 635. Similarly, Judge Wright noted in her September 23, 1996 Memorandum Opinion denying Joshua's motion for interim attorneys' fees that their counsel was attempting to bill his time at the rate of $250 per hour, which she found was not \"reasonable.\" September 23, 1996 Memorandum Opinion at footnote 6 (docket no. 2821). Likewise, the staff and budget for the ODM has more than doubled since 1989, even though the more streamlined obligations of the Revised Plan approved in early 1998 would seem to have required less monitoring ofLRSD's implementation of those obligations. Similarly, for the last few years, it appears NLRSD has been unitary and has required very little in the way of monitoring by the ODM. Thus, I would have expected annual reductions in the staff and budget for the ODM, beginning in 1998, and continuing through the current fiscal year. That has not happened. -44- A072A I. Final Approval Of Revised Desegregation And Education Plan On April 10, 1998, Judge Wright entered a Memorandum Opinion and Order ( docket no. 3144) approving the Revised Plan. Importantly, Judge Wright held that the Revised Plan constituted a \"new consent decree or settlement agreement\" between LRSD and Joshua: The LRSD and Joshua have agreed that, if approved, the proposed Plan: shall supersede and extinguish all prior agreements and orders in the Little Rock School District v. Pulaski County Special School District, U .S.D. C. No. LR-C-82- 866, and all consolidated cases related to the desegregation of the Little Rock School District (\"LRSD\") with the following exceptions: a. The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 (\"Settlement Agreement\"); b. The Magnet School Stipulation dated February 27, 1987; c. Order dated September 3, 1986, pertaining to the Magnet Review Committee; d. The M-to-M Stipulation dated August 26, 1986; and, e. Orders of the district court and court of appeals interpreting and enforcing sections a. through d. above to the extent not inconsistent with this Revised Plan. Based upon this provision, this Court considers the LRSD Proposed Revised Plan an entirely new consent decree or settlement agreement between the LRSD and Joshua. April 10, I 998 Memorandum Opinion and Order at 3 (docket no. 3144) (emphasis added). Alternatively, Judge Wright concluded that, even if the Court considered the Revised Plan as a modification to the 1990 Settlement Plan,59 she would still approve the Revised Plan because 59 As indicated supra atp. 27, LRSD and Joshua agreed to certain changes in LRSD's 1990 Settlement Plan and the Interdistrict Settlement Plan. In a forty-four page Order entered on May 1, 1992 (docket no. 1587), Judge Wright approved most of those proposed modifications which were incorporated in the \"LRSD May 1992 Desegregation Plan\" and the \"May 1992 lnterdistrict Desegregation Plan.\" Judge Wright's April I 0, 1998 Memorandum Opinion fails to mention those Plans, which were the operative consent decrees LRSD was operating under at the time she entered her decision. -45- A072A I D- --- the parties had satisfied the standard for modifying a consent decree established by the Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992), and LRSD, 56 F .3d at 914. In reaching this conclusion, Judge Wright noted that LRSD had implemented certain aspects of the 1990 Settlement Plan so successfully that the district court had withdrawn supervision over those areas. 60 However, the court also recognized that some goals in the 1990 Settlement Plan\"[ were] out of date for the current situation that exists in the LRSD and other specific, rigid goals in the 1990 Plan ... may never be met, regardless of the amount of effort and good faith put forth by the LRSD.\" April 10, 1998 Memorandum Opinion and Order at 6 (docket no. 3144) (footnotes omitted). One such group of potentially unreachable goals cited by Judge Wright were the \"goals in the 1990 Plan regarding achievement disparities [which] may never be met regardless of the effort put forth by LRSD.\" Id. See Testimony of Dr. Herbert J. Walberg at 17-25 (docket no. 2692); Testimony of Dr. David J. Armor at 18-39 (docket no. 2693); and Testimony of Dr. Gary Orfield at 25-31 ( docket no. 2768). J. LRSD's Implementation Of Its Obligations Under The Revised Plan Between April 10, 1998, and March 15, 2001, the date LRSD filed its Request for Scheduling Order and Compliance Report seeking unitary status, LRSD and Joshua filed no substantive pleadings addressing any problems arising from LRSD 's implementation of its obligations under the Revised Plan. In fact, only three documents dealing with LRSD's 601n an Order entered on March 27, 1996 ( docket no. 2648), Judge Wright released LRSD from Court supervision and monitoring in the areas of Multicultural Curriculum (LRSD May 1992 Desegregation Plan, docket no. 1587 at 63-80), Vocational Education (LRSD May 1992 Desegregation Plan, docket no. 1587 at 98-105), and Computerized Transportation System (LRSD May 1992 Desegregation Plan, docket no. 1587 at 227-28). See also February 9, 1996, Stipulation for Order (docket no. 2626). -46- implementation of the Revised Plan were filed during that period of time. First, on August 11, 1999, the ODM filed a lengthy Report (docket no. 3289) on LRSD's preparations for implementation of the Revised Plan. This Report reviewed the status ofLRSD's implementation of all aspects of the Revised Plan, including the following areas that have special relevance to Joshua's opposition to LRSD's pending request for unitary status: Extracurricular Enrichment Activities (pp. 12-16); LearningEnvironment(pp. 20-22); Mathematics(pp. 27-31); Program Assessment (pp. 42-43); Reading and Language Arts (pp. 44-48); Remediation (pp. 49- 52); and Student Discipline (pp. 67-71 ). The ODM's \"Summary and Conclusions\" that followed each section of the Report indicated that, overall, LRSD was doing a satisfactory job of implementing the Revised Plan. Second, on April 18, 2000, LRSD filed a 129-page Interim Compliance Report (docket no. 3356 dated March 15, 2000). Although LRSD was not obliged to file this Report, it voluntarily did so for two stated reasons: (1) \"to help the District assess its progress toward full compliance and to reassure the court, the parties, and the community of the District's good faith efforts to be in total compliance with the Revised Plan\"; and (2) \"[t]he District hopes to receive comments and suggestions from interested persons as to the Distric;t's compliance with the Revised Plan and the format and content of this status report.\" Interim Compliance Report at 1 (docket no. 3356). The Interim Compliance Report set forth in detail all of the programs, policies, and procedures that LRSD was implementing in accordance with its obligations under the Revised Plan. The ODM did not file any comments or objections to anything contained in LRSD's Interim Compliance Report. Likewise, nothing contained in that Report caused Joshua's counsel, -47- ! A072A who was being paid $4,027.78 per month by LRSD to monitor its implementation of the Revised Plan, to raise any compliance issues. Finally, no \"interested party'' raised any questions concerning whether, based on the programs, policies, and procedures described in the Interim Compliance Report, LRSD was in substantial compliance with its obligations under the Revised Plan. This silence, it seems to me, speaks rather eloquently. Third, on June 14, 2000, the ODM filed a 127-page Report of Disciplinary Sanctions in the LRSD (docket no. 3366).61 The introduction to this Report contained a broad disclaimer of what was not being evaluated: This document neither evaluates the district's discipline policies and procedures nor determines how the policies are followed at various schools. Moreover, the report does not measure the effectiveness of any program, training or practices the district may have instituted to address the need for all students to be disciplined fairly and equitably, regardless of their race or sex. While the disciplinary procedures are represented by the data are legitimate and important areas of inquiry, we have not examined them here. We do provide some additional information to explain the district's general approach to discipline and to set the context for our findings, but our report focuses on the LRSD's own records and what they reflect. Report of Disciplinary Sanctions at 1 (docket no. 3366).62 Furthermore, because LRSD maintained disciplinary records on only \"suspensions and expulsions,\" the Report was limited to an examination of LRSD's raw data, broken down by race and sex, for students who were 61The ODM prepared this Report as part of its ongoing monitoring of the way all three Pulaski County school districts imposed disciplinary sanctions on students. In previous years, the ODM had prepared similar Reports on NLRSD and PCSSD. Thus, the ODM's June 14 Report was not triggered by or related to anything in LRSD's March 15, 2000 Interim Compliance Report. 62By failing to evaluate and examine the many important areas covered by this disclaimer, the ODM substantially reduced the usefulness of its Report and made it virtually impossible to draw any conclusions from the Report that were not based on pure speculation. -48- I I A072A ( suspended or expelled from each elementary school, junior high school, and high school during six school years, 1993-94 through 1998-99. While the data compiled in the Report revealed that a disproportionate number of AfricanAmerican male students were suspended or expelled at many schools, the lack of specific facts surrounding each suspension and expulsion (e.g., a description of the conduct giving rise to the disciplinary sanction, race of teacher or administrator issuing disciplinary sanction, socioeconomic background of student, etc.) made it impossible to determine, without speculation, the reason for this disparity. 63 Additionally, because LRSD administrators assigned many of the suspended or expelled students to alternative education programs64 but failed to maintain records documenting which suspended and expelled students were sent to those programs, it was impossible to determine from the Report how many days of school each of the suspended and expelled students actually missed. Finally, because the Report did not include any data for the 1999-00 school year, it was impossible to determine if converting LRSD's junior high schools to middle schools improved behavior problems and reduced the number of suspensions and expulsions. However, the Report made it clear that this change could affect future data: Beginning with the 1999-2000 school year, the district made a fundamental commitment to improving students' performance, both academic~lly and 63The preface to the Report made it clear that the disproportionate number of AfricanAmerican students suspended or expelled from school is a nationwide phenomenon. The Report also pointed out that the way students behaved in school was affected by a host of factors that were beyond the influence of school personnel, \"such as home environment, family values, and the level of socialization prior to starting school. ... \" Report at 6. Finally, the Report observed that: \"Another aspect of discipline that requires note is the tremendous increase in the number of single-parent households in our society. . . . This deficiency is particularly significant for adolescent males who live with only their mothers.\" Report at 7. 64See Report at 10-12. -49- A072A _ IJ3 D_ V A/A?\\ behaviorally, by converting to a middle school system (grades 6-8). Studies have shown that the grade 6-8 configuration is developmentally appropriate. The teaming practiced in middle schools is to provide a nurturing environment in which students can learn and also find help with the physical and emotional changes they are experiencing. Because the discipline data for 1999-2000 were not available at the time we prepared this report, we could not assess whether discipline and sanctions have changed in ways that might be attributable to the middle school approach. Report at 126. In the Report's \"Conclusions,\" the ODM made two primary criticisms of LRSD's disciplinary practices: (1) it had not maintained and compiled \"comprehensive data on all the discipline sanctions [which] may leave some problems uncovered, as well as thwart assessment of the extent to which the district is preventing racial discrimination in disciplinary actions overall\"; and (2) \"[ w ]bile the report data do not reflect overall serious behavior problems in LRSD, African-American males are being disciplined in disproportionately high numbers.\" Report at 125. The ODM also offered seven \"ideas . .. as suggestions for improving disciplinary procedures for all students in LRSD, while also reducing the over-representation ofblack students in disciplinary actions.\" Report at 127. K LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan On March 15, 200 I, LRSD filed a Request for Scheduling Order and Compliance Report ( docket no. 3410) and requested the court to declare it ''unitary with respect to all aspects of school operations.\" On June 25, 2001, Joshua filed their Opposition to LRSD's Compliance Report ( docket no. 3447) in which they argued LRSD was not entitled to unitary status under the Revised Plan. On March 15, 2002, LRSD filed the pending Motion for an Immediate Declaration of -50- A072A ,~ --- Unitary Status (docket no. 3580) and Supporting Memorandum Brief (docket no. 3581). On May 30, 2002, Joshua filed their Response in Opposition to LRSD's Motion for hnmediate Declaration of Unitary Status (docket no. 3604). On June 7, 2002, LRSD filed its Reply Brief (docket no. 3607). As indicated previously, under 11 of the Revised Plan, LRSD was entitled to the entry of an order declaring it unitary if no party challenged its substantial compliance with th~ Revised Plan. Because Joshua chose to challenge LRSD's \"substantial compliance,\" 11 of the Revised Plan imposed on them the burden of proof on that issue. Joshua's counsel has acknowledged that the Revised Plan imposed on his clients the burden of proving that, as of March 15, 2001, 65 LRSD was not in substantial compliance with its obligations under the Revised Plan. See Transcript of Proceedings on June 29, 2001, at 26 (docket no. 3461), and Transcript of Proceedings on July 9, 2001, at 26 (docket no. 3464). 65In its October 3, 200 I Order ( docket no. 3515), the district court required LRSD to elect between two options: Option!: (A) Present evidence concerning the LRSD's activities with respect to the Revised Plan beyond the date of March 15, 2001; and- (B) Produce the e-mails requested by Joshua beyond that date. Option 2: (A) Present evidence concerning the LRSD's activities with respect to the Revised Plan up to the date of March 15, 2001, and not beyond; and (B) Correspondingly, the LRSD would have no obligation to produce the e-mails requested by Joshua beyond that date. LRSD filed a Response to the October 3, 2001 Order ( docket no. 3517) objecting ''to being forced to select from the two options offered by the Court.\" Subsequently, LRSD advised Judge Wright that, without waiving its objections, it selected \"Option 2.\" Therefore, any evidence ofLRSD's \"compliance activities\" that took place after March 15, 2001, cannot be considered in deciding the question of unitary status. -51- A072A IAou A/0'\u0026gt;\\ rn. Relevant Provisions Of Revised Plan In Joshua's Opposition to LRSD's Compliance Report (docket no. 3447), they include a \"Seriatim Response to District's March 15, 2001 Compliance Report\" in which they list compliance problems or concerns with the following sections of the Revised Plan: 2.1 (LRSD's obligation of good faith); 2.1.1, 2.2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, and 2.2.7 (LRSD's obligations regarding faculty and sta:fl); 2.3 (LRSD's obligations regarding student assignment); 2.4 (LRSD 's obligations regarding special education and related programs); 2.5, 2.5.1, 2.5.2, 2.5 .3, and 2.5 .4 (LRSD' s obligations regarding student discipline); 2.6, 2.6.1, 2.6.2, and 2.11. l (LRSD's obligations regarding extracurricular activities, advanced placement courses, and guidance counseling); 2. 7 and 5 (LRSD's obligations regarding improving African-American academic achievement); 2.8 (parental involvement); and 3.6 (school construction and closing). Importantly, Joshua's Opposition to LRSD's Compliance Report was careful to note that their concerns regarding LRSD's compliance with faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing were based primarily on \"information and belief' or involved \"generalized suspicions\" regarding LRSD's future actions. After filing that Opposition, Joshua conducted consid~ble discovery to develop the facts to support their challenges to LRSD's request for unitary status. As indicated previously, before beginning the evidentiary hearings on Joshua's Opposition to LRSD's request for unitary status, Judge Wright instructed Joshua's counsel to present his argument beginning with his strongest first and proceeding to his weakest ( docket no. 3461 at 54- 55). During a hearing on July 9, 2001, which took place after the completion of the first two days -52- A072A ~ /1=1 ---- of testimony on July 5 and 6, 2001, Joshua's counsel stated that LRSD's three most serious areas of noncompliance under the Revised Plan were its failure to meet its obligations regarding: (1) good faith; (2) improvement of academic achievement for African-American students;66 and (3) improvement of the racial disparity in student discipline (docket no. 3464 at 26-29). During the evidentiary hearings on August 1 and 2, 2001, Joshua completed calling all of their witnesses on the issues ofLRSD's alleged substantial noncompliance with those three areas of the Revised Plan. At the beginning of the fifth day of evidentiary hearings on November 19, 2001, Judge Wright noted, on the record, that counsel for Joshua had \"rested his case\" on the first three areas of LRSD's alleged noncompliance (docket no. 3558 at 14-15). After Judge Wright denied LRSD's Motion for Directed Verdict, it presented its case on November 19 and 20 (docket nos. 3558 and 3559). On December 11, 2001, Judge Wright conducted a hearing to schedule the remaining days of evidentiary hearings on Joshua's Opposition to LRSD 's request for unitary status ( docket no. 3560). During this hearing, Judge Wright agreed to allow Joshua and LRSD no more than five days to present additional testimony on what Joshua's counsel identified as the last three areas ofLRSD's alleged noncompliance with the Revised Plan: (1) advanced placement courses; (2) .. extracurricular activities; and (3) guidance counseling. Judge Wright also agreed to allow Joshua to present non-cumulative testimony regarding: LRSD's alleged failure to comply with its overall obligation of good faith regarding its implementation of programs, policies, and procedures 66Part of Joshua's argument that LRSD had failed to substantially comply with its obligation to improve the academic achievement of African-American students included the contention that LRSD had failed to make the annual \"assessments\" of the academic programs implemented to improve the achievement of African-American students as required by 2.7.1 of the Revised Plan. -53- A,_0 72_A_ _ _ ,. regarding advanced placement courses, extracurricular activities, and guidance counseling-, and how LRSD's programs, policies, and procedures governing advanced placement courses, extracurricular activities, and guidance counseling had adversely affected the academic achievement of Afiican-American students. I conducted the final three days of evidentiary hearings on those issues, beginning on July 22, 2002. At no point during those hearings, or during the six previous days of ev:identiary hearings, did Joshua present any evidence or arguments -to support the contentions in their Opposition to LRSD's Compliance Report (docket no. 3447) that LRSD was not in substantial compliance with its obligations regarding faculty and staff( 2.1.1, 2.2-2.2.5, and 2.2.7); student assignment( 2.3); special education and related programs( 2.4); parental involvement( 2.8); and school construction and closing( 3.6). Joshua's failure to present any evidence to support their contention regarding LRSD's alleged failure to substantially comply with those sections of the Revised Plan requires a finding that they have abandoned those arguments. In any case, Joshua clearly failed to maintain their burden of proving that LRSD failed to substantially comply with any of those particular sections of the Revised Plan. Thus, the detennination of LRSD 's request for unitary status turns on whether Joshua has ,' maintained their burden of proving by a preponderance of the evidence that LRSD has failed to substantially comply with the following obligations imposed on it under the Revised Plan: (I) good faith as set forth in 2.1; (2) student discipline as set forth in 2.5 through 2.5.4 and 2.12.2; (3) academic achievement of Afiican-American students as set forth in 2.7, 2.7.1, 5.1 through 5.8, and 2.12.2; ( 4) extracurricular activities as set forth in 2.6, 2.6.3, and 2.12.2; (5) advanced placement courses as set forth in 2.6, 2.6.2, and 2.12.2; and (6) guidance counseling -54- I AO~-- as set forth in 2.11.1. The provisions of the Revised Plan containing LRSD's obligations in these six disputed areas, along with other provisions of the Revised Plan that are relevant to the resolution of the issue of unitary status, are summarized below. A. LRSD's Obligation Of Good Faith Toe first obligation imposed on LRSD was to act in \"good faith.\" Because of the importance of this obligation to the question of unitary status, 2.1 of the Revised Plan ought, in fairness, to be quoted in its entirety: LRSD shall in good faith exercise its best efforts to comply with the Constitution, to remedy the effects of past discrimination by LRSD against African-American students, to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of LRSD and to provide an equal educational opportunity for all students attending LRSD schools. B. LRSD's Obligations Regarding Student Discipline Sections 2.5 through 2.5.4 set forth LRSD's obligations regarding student discipline. Section 2.5 obligated LRSD to implement programs, policies, and/or procedures \"designed to ensure that there is no racial discrimination with regard to discipline.\" Section 2.5.1 required LRSD to \"strictly adhere to the policies set forth in the Student Rights and Responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner,\" and 2.5.2 required LRSD to \"purge students discipline records after the fifth and eighth grades of all offenses, except weapons offenses, arson and robbery.\" Section 2.5.3 established the position of \"ombudsman,\" who was responsible for \"acting as an advocate on behalf of students involved in the discipline process, investigating parent and student complaints ofrace-based mistreatment and attempting to achieve equitable solutions.\" Finally, 2.5.4 obligated LRSD to ''work with students and their parents to develop behavior modification plans for students who exhibit -55- A072A IR-\u0026lt;\u0026gt;ID'\u0026gt;\\ frequent misbehavior.\" C. LRSD's Obligations To Improve And Remediate The Academic Achievement Of African-American Students Section 2.7 contained LRSD's core obligation regarding the academic achievement of African-American students: LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. Very significantly, nowhere in this section or any other section of the Revised Plan does LRSD assume any obligation to narrow or close the academic achievement gap between white students and African-American students. In order to detennine the effectiveness of LRSD's academic programs designed to improve African-American achievement, Section 2. 7. l obligated LRSD to \"assess the academic programs implemented pursuant to Section 2. 7 after each year.\" If the results of those assessments \"[reveal] that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program.\" D. LRSD's Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors Section 2.6 required LRSD to \"implement programs, policies and/or procedures designed to promote participation and to ensure that there are no barriers to participation by qualified African-Americans in extracunicular activities, advanced placement courses, honors and enriched courses and the gifted and talented program.\" Section 2.6.1 and 2.11.1 required LRSD to implement training programs to assist teac This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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