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Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 1 of 5 IN THE UNIIBD STATES DISTRICT COURT EASIBRN DISTRICT OF ARKANSAS WESIBRN DMSION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. t-ARS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS PCSSD REPLY TO PACT'S RESPONSE TO PCSSD'S MOTION FOR A DECLARATION OF UNITARY STATUS INTRODUCTION This court should disregard the PACT Response for two (2) fundamental reasons: 1. The PCSSD filed its Motion for Unitary Status on October 29, 2007. The PACT ''Response\" was filed on December 21, 2007, or almost two (2) months later. PACT neither sought nor obtained an enlargement of time to respond to the PCSSD Motion and under the Rules the ''Response\" should be dismissed as untimely. 2. More substantively and fundamentally, the relief sought by PACT, to the extent it can be discerned, exceeds the limited reasons for which PACT was granted intervenor status in 1984. In 1984, PACT persuaded the Court of Appeals to permit it and the other teacher organizations then in operation in Pulaski County to intervene for the limited purpose of protecting their contractual rights and their collective bargaining rights, particularly assuming that consolidation might be ordered. 738 F.2d 82. (8th Cir. 1984). Here, the relief seemingly sought by PACT asks the district court to exclude from its ultimate decision the issues of racial discrimination in hiring and promotions as alleged in two individual cases: Humphries v. PCS SD ( citation omitted) and Dixon v. PCSSD ( citation omitted). PACT 's submission at p.4. 1121892.1 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 2 of 5 DISCUSSION 1. Pursuant to the rules of this court, a response to a motion is due within eleven (11) days of service. See Rule FRCP 6. Here, a response was due no later than November 9, 2007, even assuming that PACT had any standing or basis or make a response. The gross tardiness of the response alone is a sufficient basis for the court to strike or disregard it or to deny the relief sought. 2. Much of the PACT submission discusses the claims of two individuals, a Dr. Donna Humphries who wishes to be an administrator, and a Ms. Norma Dixon, a non-certified employee who would like to be a \"buyer.\" Two preliminary observations are in order. If Dr. Humphries is ever successful in becoming an administrator, she would forfeit her eligibility to remain a member of PACT. PACT is an acronym for Pulaski Association of Classroom Teachers. Likewise, Ms. Dixon, as a non-certified employee who wishes to be a buyer in the business department, does not even aspire to be a classroom teacher, and is likewise not eligible to be a PACT member. Much of the rest of the PACT submission complains about the racial composition of the administrative staff of the PCS SD, a matter outside the scope of its intervention. 738 F.2d 82 (8th Cir. 1984). Nowhere does it point to a specific violation of Plan 2000, the Plan pursuant to which the District is seeking to demonstrate its compliance and thus attain unitary status. Plan 2000 states simply and exclusively as regards administrators that: \"The PCSSD shall select its administrative staff from a racially diverse pool of applicants.\" Plan 2000 at page 6, SectionL. Staff Plan 2000 says nothing about what the statistical outcomes should be. The test for the hiring of teachers is phrased identically. Later in its submission, PACT seeks to make much of its view that the PCSSD is in compliance with some standards not found in Plan 2000 regarding the racial composition of its teacher corp. PACT cites a case from 1987 when the PCSSD operated pursuant to an earlier plan. At various points in this litigation, other litigants have sought to promote or otherwise litigate their perceived interests of individual employees. As predecessor judges in this case have consistently ruled, this class action institutional reform litigation is not a proper forum for the litigation of individual claims or perceived individual slights. The PACT ''Response\" should be dismissed on this basis as well. Premises considered, PACT, as an organization of teachers 1121892.1 2 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 3 of 5 allowed to intervene to protect their contract rights as teachers, simply lack standing to file their ''Response.\" WHEREFORE, the PCS SD prays for an order denying whatever relief is sought by PACT and for all other proper relief. 1121892.1 Respectfully submitted, :l\\1ITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODY ARD, P.L.L.C. 425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 Telephone: (501) 688-8800 Facsimile: (501) 688-8807 Isl M. Samuel Jones. III M. Samuel Jones III (76060) E-mail: sjones@mwsgw.com Attorneys for Pulaski County Special School District 3 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 4 of 5 CERTIFICATE OF SERVICE I hereby certify that on January 7, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to the following:  Clayton R. Blackstock cblackstock@mbbwi.com  Mark Terry Burnette mbumette@mbbwi.com  John Clayburn Fendley, Jr clayfendley@comcast.net,yeldnef@yahoo.com  Christopher J. Heller heller@fec.net,tmiller@fec.net,brendak@fec.net  M. Samuel Jones , III sjones@mwsgw.com,aoverton@mwsgw.com  Stephen w. Jones sjones@jlj.com,linda.calloway@jlj.com  Philip E. Kaplan pkaplan@williamsanderson.com,nmoler@williamsanderson.com  Office of Desegregation Monitor andreeroaf@odmemail.com,aroaf@seark.net,paramer@odmemail.com  Scott P. Richardson scott.richardson@arkansasag.gov,agcivil@arkansasag.gov,danielle.williams@arkansasag .gov  John W. Walker johnwalkeratty@aol.comJorap72297@aol.com.jspringer@gabrie1maiLcom I certify that on January 7, 2008, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Postal Service to the following non CM/ECF participants: Mr. Robert Pressman 22 Locust Avenue Lexington, Massachusetts 02173 1121892.1 4 Case 4:82-cv-00866-WRW Document 4178 Filed 01/07/2008 Page 5 of 5 Judge J. Thomas Ray U.S. District Courthouse 600 West Capitol Avenue, Suite 149 Little Rock, Arkansas 72201 1121892.1 Isl M. Samuel Jones. III M. Samuel Jones, III Arkansas Bar No. 76060 Attorneys for Pulaski County Special School District MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODY ARD, P.L.L.C. 425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 Telephone: (501) 688-8800 Facsimile: (501) 688-8807 E-Mail: sjones@mwsQW.com 5 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Monday, January 07, 2008 2:34 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Brief in Opposition This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Jones, M. on 1/7/2008 at 2:33 PM CST and filed on 1/7/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document Number: 4178 Docket Text: BRIEF IN OPPOSITION filed by Pulaski County Special School District re [4175] Response to Motion - PCSSD Reply to PACT's Response to PCSSD's Motion for a Declaration of Unitary Status (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/8/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID= 1095794525 [Date= 1/7/2008] [FileNumber= 1070655-0] [3c6b7ca956241038bba68bdb4ddbd820dlfl89c0e21297c6b3bf7c923d8308b67520 7a3c381397c5b193a0e0fe82c9a085839e3146b6d3e33a97ae9a8df83dec]] 1/8/2008 Case 4:82-cv-00866-WRW Document 4179 Filed 01/09/2008 Page 1 of 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. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PLAINTIFF DEFENDANT INTER VEN ORS INTER VEN ORS MOTION TO FILE A BELATED RESPONSE TO PCSSD'S MOTION FOR A DECLARATION OF UNITARY STATUS Comes the Intervenor, Pulaski Association of Classroom Teachers (PACT), and, moves for leave to file its Response to Motion for a Declaration of Unitary Status, and in support, states: 1. PACT mistakenly relied upon the Court's prior grant ofan extension of time until December 29, 2007, for the Joshua Intervenors to file their response to PCS SD' s motion for declaration of unitary status, and therefore, filed its response on December 21 , 2007. 2. PCSSD now seeks to strike that response pursuant to Rule 6, FRCP. 3. As PCS SD' spending motion is a dispositive motion for this case, PACT should be heard on the issues raised in its December 21, 2007, response, despite the delay in filing relative to PCSSD's motion. 4. PCS SD is not prejudiced by this delay, as the Joshua Intervenors were previously granted an extension of time for filing their response, and PACT filed within that time period. Further, the court has indicated that it will not set a hearing on PCSSD's motion until after the Court Page 1 of 3 'I Case 4:82-cv-00866-WRW Document 4179 Filed 01/09/2008 Page 2 of 3 of Appeals for the Eighth Circuit rules on the Joshua Intervenor's appeal of the court's order granting LRSD unitary status. PCSSD has had adequate time to reply, and has done so, substantively, already. Wherefore, PACT prays for an order, nunc pro tune, granting it additional time to respond to PCSSD's motion for declaration of unitary status to include December 21, 2007. Respectfully submitted, ls/Mark Burnette Mark Burnette, ABN 88078 MITCHELL,BLACKSTOCK,BARNES WAGONER, IVERS \u0026amp; SNEDDON, PLLC 1010 West Third P. 0. Box 1510 Little Rock, AR 72203-1510 (501) 378-7870 Page 2 of 3 Case 4:82-cv-00866-WRW Document 4179 Filed 01/09/2008 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on January 9, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to the following: ___ John Clayburn Fendley, Jr. clayfendley@comcast.net; yeldnef@yahoo.com Christopher J. Heller heller@fec.net;tmiller@fec.net;brendak@fec.net M. Samuel Jones , III sjones@mwsgw.com;aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com;linda.calloway@jlj .com Philip E. Kaplan pkaplan@williamsanderson.com;nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com;aroaf@seark.net;paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov;agcivil@arkansasag.gov danielle.williams@arkansasag.gov John W. Walker johnwalkeratty@aol.com; lorap72297@aol.com;jspringer@gabrielmail.com M. Samuel Jones, III sjones@mwsgw.com I certify that on January 9, 2008, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Postal Service to the following non CM/ECF participants: Mr. Robert Pressman 22 Locust Avenue Lexington, Massachusetts 02173 By: ls/Mark Burnette Mark Burnette, ABN 88078 Page 3 of 3 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 09, 2008 3:26 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Motion for Extension of Time to File Response/Reply This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Burnette, Mark on 1/9/2008 at 3:25 PM CST and filed on 1/9/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski Association of Classroom Teachers WARNING: CASE CLOSED on 01/26/1998 Document Number: 4179 Docket Text: First MOTION for Extension of Time to File Response/Reply as to [4159] MOTION for Order for a Declaration of Unitary Status by Pulaski Association of Classroom Teachers (Burnette, Mark) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com 2/12/2008 Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com - Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/9/2008] [FileNumber=1073027-0] [85f4eb2890762693857547f8cfcac50348467752285b7alae8f633abcd5fD2dd6189 6101f3a91ed914aa161cdd93858ecd6af6dlbfadd94ffaa2bd2f1084eb3e]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 1 of 5 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. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. SURREPLY TO PCSSD'S PLAINTIFF DEFENDANT INTER VEN ORS INTER VEN ORS MOTION FOR A DECLARATION OF UNITARY STATUS Comes the Intervenor, Pulaski Association of Classroom Teachers (PACT), and, for its surreply to Pulaski County Special School District's Motion for a Declaration of Unitary Status, states: 1. PACT simultaneously files herewith a Motion for Leave to File Belated Response and Sur Reply to PCSSD's Motion for a Declaration of Unitary Status to meet PCSSD's objection to the previously filed response without an order granting such a belated filing. PACT mistakenly relied upon the time granted to the Joshua Intervenors as setting a deadline for all responding to the dispositive motion filed by PCSSD. The usual eleven days for responding to motions was insufficient to allow PACT to assess the motion relative to the multiple interests at stake. PACT urges the court to accept its original pleading filed ono December 21, 2007, after considering the accompanying motion, and thereafter, grant the relief requested. 2. Further, PCSSD 's Reply, ,i 2, makes two erroneous \"preliminary observations,\" which it presumably intends for the court to rely upon to find PACT \"simply lack standing to file their Page 1 of 5 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 2 of 5 \"Response.\" First, PCS SD asserts that the two individuals (Dr. Donna Humphries and Ms. Norma Dixon) for whom PACT responded on December 21, 2007, are either not members of PACT ( re:Ms. Dixon) or would \"forfeit\" PACT membership if \"successful in becoming an administrator,\" and presumably, therefore, PACT does not have standing to represent the interests asserted in PACTs' Response to Motion for Declaration of Unitary Statuse. PCSSD Reply,p. 2. Dr. Humphries is a member of PACT, and will not forfeit membership upon being granted relief as an administrator. PCS SD is well aware that it withholds PACT membership dues for well over 40 principals and assistant principal administrators employed by the district. Further, PACT simply has no restriction on membership relative to an administrative employee's status as such so long as the member must have a teaching certificate as a condition of his or her employment, and, - the person is not the chief administrator of the district, i.e. the superintendent. PACT's bargaining status is limited to non-administrative personnel, but, as discussed below, that does not limit PACT's class representative status on behalf of virtually all employees of the district. See Dkt. No. 1179, also cited in PACT's Response. Secondly, with respect to Ms. Dixon and Dr. Humphries, PACT is obligated to represent both of these employees, whether members of PACT or not, pursuant to the April 17, 1989 consent Order Dkt. No. 1179, which states in relevant part: The Little Rock Classroom Teachers Association, the Pulaski Association of Classroom Teachers, the North Little Rock Classroom Teachers Association, Grainger Ledbetter, Joyce Elliott, Sue Simmons, Katherinie Knight, Ed Bullington, Willie Givens, Teretha Jackson, and Leola Scoggins, are certified as class representatives under Rule 23 of the Federal Rules of Civil Procedure for the class of all present, past and future certified and non- Page 2 of 5 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 3 of 5 certified, past and future certified, and non-certified staff employees of the Little Rock School District, Pulaski County Special School District No. 1, and the North Little Rock School District; Hence, by agreement and order of the court, PCSSD is precluded from asserting any alleged objection to PACT's standing on behalf of either non-teacher employees, non-certified employees, or non-PACT member employees. All are represented by PACT at this juncture. PCSSD's counsel may have been unaware of the expanded role of PACT on behalf of all PCSSD employees as he was not the attorney signing that consent order on behalf of PCSSD, attorney N. M. Norton, Jr., was counsel at that time. However, PACT cited DKT 1179 in its Response, thus PCSSD is aware that PACT's representative status has been expanded beyond the parameters of the 1984 Court of Appeals ruling which PCSSD cites. In light of the 1989 consent order establishing PACT's expanded class representative status, - PACT' s substantive interests in this matter are not constrained or controlled by the limits established in 1984, to \"protect their [sic] contract rights as teachers\" as asserted by PCS SD. Reply Brief p. 3. Nevertheless, the protection of PCSSD's employees' contract rights are precisely what is being raised by PACT herein. The contract rights which PACT seeks to protect from implicit resolution within this case are as based on the following: All employment contracts with public entities include an implied term of equal protection, pursuant to the 5th and 14th Amend. to the U.S. Const.; all employment contracts by employers who employ more than 15 employees include an implied term of equal employment opportunity as described by Title VII, 42 U.S.C. 2000e. Further, PCSSD's \"Professional Negotiated Agreement,\" explicitly addresses the process for filling administrative positions from within the ranks of its employees, which is directly asserted as a basis for Dr. Humphries' claims. The problem Page 3 of 5 V \u0026lt; ... ... Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 4 of 5 PACT sees with PCSSD's position herein is its apparent attempt to gloss over, and gain potential legal advantage, by referring the court to its administrative assignment statistics, PCSSD 's Motion for Declaration of Unitary Status, p. 4-5, which, if approved, may be interpreted as implicitly approving its hiring statisics for these positions. One cannot \"assign\" minorities to 52% of the available administrative positions without having also \"hired\" 52% minorities for those positions. If the court grants its approval to one, it may well be held to have implicitly granted approval to the other. That should not be done, and that is what PACT seeks to prevent by filing its Response. WHEREFORE, PACT prays any order issued on PCS SD' spending motion for unitary status make explicit exclusion of the issues ofracial discrimination in hiring and promotions as alleged in Humphries v. PCSSD, Case No. 4 :06 CV-00606 (E.D. Ark.) and Dixon v. PCSSD, Case No. 4-07-cv- 01119 (E.D.Ark). Respectfully submitted, ls/Mark Burnette Mark Burnette, ABN 88078 MITCHELL,BLACKSTOCK,BARNES WAGONER, IVERS \u0026amp; SNEDDON, PLLC 1010 West Third P. 0. Box 1510 Little Rock, AR 72203-1510 (501) 378-7870 Page 4 of 5 Case 4:82-cv-00866-WRW Document 4180 Filed 01/09/2008 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on January 9, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to the following: ___ John Clayburn Fendley , Jr. clayfendley@comcast.net; yeldnef@yahoo.com Christopher J. Heller heller@fec.net;trniller@fec.net;brendak@fec.net M. Samuel Jones , III sjones@mwsgw.com;aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com;linda.calloway@jlj .com Philip E. Kaplan pkaplan@williamsanderson.com;nrnoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com;aroaf@seark.net;paramer@odmemail.com ScottP.Richardson scott.richardson@arkansasag.gov;agcivil@arkansasag.gov danielle. williams@arkansasag.gov John W. Walker j ohnwalkeratty@aol.com; lorap72297@aol.com;jspringer@gabrielmai1.com M. Samuel Jones, III sjones@mwsgw.com I certify that on January 9, 2008, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Postal Service to the following non CM/ECF participants: Mr. Robert Pressman 22 Locust Avenue Lexington, Massachusetts 02173 By: ls/Mark Burnette Mark Burnette, ABN 88078 Page 5 of 5 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 09, 2008 3:33 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response in Opposition to Motion This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Burnette, Mark on 1/9/2008 at 3:32 PM CST and filed on 1/9/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski Association of Classroom Teachers WARNING: CASE CLOSED on 01/26/1998 Document Number: 4180 Docket Text: RESPONSE in Opposition re [4159] MOTION for Order for a Declaration of Unitary Status filed by Pulaski Association of Classroom Teachers. (Burnette, Mark) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec .net, brendak@fec .net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 2/12/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/9/2008] [FileNumber=1073049-0] [295d492bfa46dlfbac44420e507ba0b87f98cld95027c217c49e075f825fl28763c7 ccd4b412a96ddb147da03783ac2a7a07d4c327baf3150e6b135c8f80c3be]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82-cv-866 WRW PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. DEFENDANTS RESPONSE TO DECEMBER 21, 2007, LETTER ORDER The Arkansas Department of Education (ADE), by and through its attorney, Assistant Attorney General Scott P. Richardson, and the North Little Rock School District, by and through its attorney Stephen W. Jones, state for their Response to the Court's December 21, 2007, Letter Order: 1. On December 21, 2007, the Court issued a letter expressing concern about scheduling hearings on the School Districts' motions for unitary status because of the Joshua Intervenors' \"challenging the compliance standard [the Court] used during the last hearing\" in the pending appeal of the LRSD's unitary status. 2. The standard for determining whether the school districts have complied with their desegregation plans is well established in this case. In 2002, when this Court released the LRSD from all but one of the areas of its desegregation plan, the Court explained that the standard was whether a district had \"substantially complied\" with its desegregation obligations. The 2002 opinion gave a focused definition of this standard when it held: I am required to examine whether any of LRSD's failures to comply with the Revised Plan in the six challenged areas are \"serious enough\": (1) to constitute \"substantial noncompliance\"; and (2) \"to cast doubt\" on LRSD's \"future compliance with the constitution.\" Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 2 of 5 LRSD v. PCSSD, et al., 237 F.Supp.2d 988, 1032-33 (E.D. Ark. 2002). 3. Although the Joshua lntervenors appealed the 2002 release of the LRSD, they did not challenge this standard on appeal. The Eighth Circuit in affirming this Court's 2002 decision relied on this standard to evaluate the LRSD's release. LRSD v. Armstrong, 359 F.3d 957 (8th Cir. 2004). This standard thus became the law of the case as the Court recognized in 2004. LRSD v. PCSSD, 470 F. Supp. 2d 963,965 (E.D. Ark. 2004). Accordingly, this is the standard that should continue to govern the evaluation of the school districts' compliance with their desegregation plans. 4. Further, the standard of substantial compliance in good faith established by this Court and the Eighth Circuit is consistent with Supreme Court precedent starting with Brown II in 1955. Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 746 (1955) (release from court supervision required if \"the action of school authorities constitutes good faith implementation of the governing constitutional principles.\") (emphasis added); Accord Green v. County School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695 (1968)(school district's obligation of compliance was \"to be acting in good faith.\"); Board of Education v. Dowell, 498 U.S. 237, 249, 111 S.Ct. 630, 637-8 (1991)(requiring \"good faith of the school board in complying with the decree.\"); Freeman v. Pitts, 503 U.S. 467, 493, 112 S.Ct. 1430, 1447 (1991)(rejecting assertion that school district had to engage in \"heroic measures\" to demonstrate compliance with a desegregation plan). 5. The Joshua Intervenors have not challenged the general application of this standard to this case in their currently pending appeal. They have argued in their Appellant's Reply Brief that the \"deeply embedded\" requirement in the Court's 2004 2 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 3 of 5 Compliance Remedy was not a new standard but that it came \"straight from the broad 2.7.1 bargain, by 'reasonable implication.\"' Ex. A, Joshua Reply Brief p. 9. The Joshua Intervenors go on to state that the \"deeply embedded\" standard does not apply to the other two districts, because \"the standard is a part of LRSD's voluntary substantive obligation drawn from Sec. 2.7.1.\" Id. In short, the Joshua Intervenors have taken the position on appeal that the standard involved in their Eighth Circuit appeal applies only to the LRSD and only to one part of its desegregation plan. Principles of fairness and estoppel should prevent the Joshua Intervenors from changing positions on this issue as the two remaining school districts move forward. Hossaini v. Western Missouri Medical Center, 140 F.3d 1140 (8th Cir. 1998). 6. With regard to the PCSSD's petition for unitary status, a response to that pleading was due on or about November 12, 2007. Neither the LRSD (the original plaintiff in this case) nor the Joshua Intervenors have filed a response to that petition in the two months since it was filed. 7. The undersigned would also note that the Arkansas General Assembly has made funds available for reimbursement of attorneys' fees if the school districts can obtain a ruling by June 14, 2008, that they have at least partially complied with their desegregation plans. Ex. A, Act 395 of 2007. WHEREFORE, the State of Arkansas and the North Little Rock School District state that the currently pending appeal should not be an impediment to having the two remaining school districts provide their students assurance through court action that they either have fulfilled or are fulfilling their desegregation obligations and requests that the 3 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 4 of 5 Court enter a scheduling order on the pending petitions for unitary status, and issue all other just and proper relief to which it may be entitled. BY: BY: Respectfully submitted, DUSTIN McDANIEL Attorney General Isl Scott P. Richardson SCOTT P. RICHARDSON, Bar No. 01208 MATTHEW B. McCOY, Bar No. 01165 Assistant Attorneys General 323 Center Street, Suite 1100 Little Rock, AR 72201-2610 (501) 682-1019 direct (501) 682-2591 facsimile Email: scott.richardson@arkansasag.gov ATTORNEYS FOR STATE OF ARKANSAS AND ARKANSAS DEPARTMENT OF EDUCATION Isl Stephen W. Jones STEPHEN W. JONES, Bar No. 78083 Jack Nelson Jones Fink Jiles \u0026amp; Gregory, P.A. 425 West Capitol Avenue Suite 3400 Little Rock, AR 72201 Telephone 501-375-1122 Fax 501-375-1027 ATTORNEY FOR THE NORTH LITTLE ROCK SCHOOL DISTRICT 4 Case 4:82-cv-00866-WRW Document 4181 Filed 01/11/2008 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on January 10, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the following: Mr. Clayton R. Blackstock cblackstock@mbbwi.com Mr. Mark Terry Burnette mbumette@mbbwi.com Mr. John Clayburn Fendley , Jr clayfendley@comcast.net Mr. Christopher J. Heller heller@fec.net Mr. M. Samuel Jones , III sjones@mwsgw.com Mr. Stephen W. Jones sjones@j lj .com Mr. John W. Walker johnwalkeratty@aol.com Office of Desegregation Monitor andreeroaf@odmemail.com; aroaf@seark.net; paramer@odmmail.com I, Scott P. Richardson, Assistant Attorney General, do hereby certify that I have served the foregoing and a copy of the Notice of Electronic Filing by depositing a copy in the United States Mail, postage prepaid, on January 10, 2008, to the following nonCM/ ECF participants: Mr. Robert Pressman 22 Locust A venue Lexington, Mass. 02173 Isl Scott P. Richardson SCOTT P. RICHARDSON 5 - 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 26 27 28 29 30 31 32 33 34 - 35 Case 4:82-cv-00866-WRW Document 4181-2 Filed 01/11/2008 Page 1 of 5 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. Act 395 of the Regular Session State of Arkansas As EAosB .-i}3i7/07 86th General Assembly Regular Session, 2007 HOUSE BILL 1829 By: Representative Bond For An Act To Be Entitled AN ACT TO ENSURE EFFICIENCY AND ACCOUNTABILITY FOR SCHOOL DISTRICTS INVOLVED IN DESEGREGATION LITIGATION; AND FOR OTHER PURPOSES. Subtitle AN ACT TO ENSURE EFFICIENCY AND ACCOUNTABILITY FOR SCHOOL DISTRICTS INVOLVED IN DESEGREGATION LITIGATION. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS: SECTION 1. Findings. It is found and determined by the General Assembly that: (1) The school districts in Pulaski County entered into a settlement agreement and desegregation plans in 1989 with the intent to fulfill a \"promise for achieving unitary school systems which are free from the vestiges of racial discrimination\"; (2) The State of Arkansas has paid the districts in excess of approximately seven hundred million dollars ($700,000,000) to assist the districts in fulfilling their promise to achieve unitary schools free from the vestiges of racial discrimination; (3) There has never been a date certain when the state's desegregation obligations in the case styled Little Rock School District v. Pulaski County Special School District No. 1, et al, No. LR-C-82-866, are to end; (4) The Little Rock School District has recently been declared lllllllllllll 111111111111111111111111111 Exhibit A 03-07-2007 09:14 JDFlll 1 2 3 4 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3/7/07 Filed 01/11/2008 Page 2 of 5 HB1829 unitary and has been released from federal court supervision, but the Pulaski County Special School District and the North Little Rock School District have yet to attain a ruling that they have fulfilled their promise to their students to achieve unitary school systems; 5 (5) These school districts believe they are unitary or have 6 achieved a unitary status in some respect, and have stated so publicly in 7 legislative committee meetings; 8 (6) The General Assembly finds that without any ruling from the 9 federal district court that the districts have achieved unitary status, there 10 is no assurance that the promise of schools free of the vestiges of racial 11 discrimination has been fulfilled by these districts; 12 (7) The General Assembly finds that, as a part of the state's 13 overall obligation to provide a general, suitable, and efficient school 14 system, the students and parents of the Pulaski County districts deserve to 15 know that they are being educated in a unitary school district, or if their 16 district is not unitary in some respect the district should be making 17 18 19 20 adequate progress towards being declared fully unitary; (8) The General Assembly seeks to assist the school districts to achieve unitary status and to fulfill their promise to provide school systems which are free from the vestiges of racial discrimination consistent with 21 their desegregation plans; and 22 (9) The General Assembly also seeks to provide some assurance to 23 the children in the districts that the promise of unitary schools in the 24 Pulaski County districts will be fulfilled within a reasonable amount of 25 time. 26 27 28 29 30 31 32 33 34 35 36 SECTION 2. Arkansas Code Title 6, Chapter 20, Subchapter 4 is amended to add additional sections to read as follows: 6-20-415. Consultants. The Department of Education in consultation with the Attorney General shall hire consultants on the following basis: (1) The consultants shall be qualified as experts in public school district desegregation; 1, 2007; (2) The department shall hire the consultants prior to October (3) The purposes for employing the consultants are to determine 2 Exhibit A 03-07-2007 09:14 JDFlll 1 2 3 4 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3/7/07 Filed 01/11/2008 Page 3 of 5 HB1829 whether and in what respects any of the three (3) Pulaski County school districts: (A)(i) Are unitary. (ii) If a school district has been declared unitary 5 or has been declared unitary in some respects, the consultants shall not 6 examine the school district on those issues; and 7 (B) Have complied with their respective consent decrees; 8 and 9 (4) The consultants shall understand and acknowledge in their 10 work and research that their testimony in court may be required. 11 12 13 14 15 16 17 18 19 6-20-416. Desegregation funding. (a) The Department of Education and the Attorney General are authorized to seek proper federal court review and determination of the current unitary status of any school district in the case of Little Rock School District v. Pulaski County Special School District No. 1, et al, No. LR-C-82-866. (b)(l) Upon the effective date of this section, the department and the Attorney General are authorized to seek modification of the current consent 20 decree or enter into a new or an amended consent decree or settlement 21 agreement under this section that allows the State of Arkansas to: 22 (A) Continue necessary and appropriate payments under a 23 post-unitary agreement to the three (3) Pulaski County school districts for a 24 limited and definite time period not to exceed seven (7) years and for a 25 definite limited sum of payments; 26 (B) Ensure that the amount of funding provided under the 27 post-unitary agreement is the total maximum obligation of the state and the 28 school districts in the case; 29 (C) Ensure that the payments required pursuant to the 30 post-unitary agreement are structured so that the total amount of the 31 payments decrease so that no financial obligation remains due or owed by the 32 state at the end of the time period specified in the post-unitary agreement; 33 and 34 35 36 (D) Ensure that the total of any financial obligation created or established for the state in any one (1) year shall not exceed the state's desegregation obligation for the 2007-2008 school year. 3 Exhibit A 03-07-2007 09:14 JDFlll 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 26 27 28 29 30 31 32 33 34 35 36 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3n /07 Filed 01/11/2008 Page 4 of 5 HB1829 (2) The agreement under this subsection (b) may only be a postunitary agreement and the school districts shall receive the continued funding only if they are declared unitary. However, the agreement does not have to be post unitary and may commence upon all districts having been declared, previously or in the future, unitary in terms of student assignment and student racial balance so long as all other requirements in subdivision (b)(l) of this section are met. (3) Before any agreement is entered into pursuant to this subsection (b), the proposed post-unitary agreement shall be submitted to the Legislative Council for review and approval. (c)(l) The department in consultation with the Attorney General shall have the authority to enter into agreements with the three (3) Pulaski County school districts to reimburse the school districts for legal fees incurred for seeking unitary status or partial unitary status. (2) To be eligible for possible reimbursement under this subsection (c) for legal fees incurred, motions seeking unitary status or partial unitary status shall be filed no later than October 30, 2007 1 and the school districts must be declared unitary or at least partially unitary by the federal district court no later than June 14 1 2008. (3) Under no circumstances shall any one (1) school district be entitled to reimbursement under this subsection (c) in excess of two hundred fifty thousand dollars ($250,000). (4) Before a reimbursement agreement is entered into pursuant to this subsection (c), the proposed reimbursement agreement shall be submitted to the Legislative Council for review and approval. (d)(l) By modifying the current consent decree or entering into a new or an amended consent decree or post-unitary agreement, the State Board of Education may create one (1) or more new school districts within Pulaski County if the creation of the new school district or districts does not eliminate the Pulaski County Special School District from existence. (2) The state board shall seek the federal district court's approval prior to creating a new school district pursuant to this subsection (d), unless the federal district court's approval is not required because: (A) The school district or districts involved have been released from the federal district court's supervision; or (B) The new school district or districts is contemplated 4 Exhibit A 03-07-2007 09:14 JDFlll 1 2 Case 4:82-cv-00866-WRW Document 4181-2 As Engrossed: H3n/07 only as part of the post-unitary agreement. Filed 01/11/2008 Page 5 of 5 HB1829 (3) Any new school district created in Pulaski County shall 3 receive a pro rata distribution based on its average daily membership of the 4 funding provided under subsection (b) of this section for the school district 5 or districts from which it was created. 6 (e) Nothing in this section shall be construed: 7 (1) To force entry of a consent decree or settlement agreement 8 by the department or the Attorney General with the three (3) Pulaski County 9 school distri cts; or 10 (2) As protecting any school district from action or sanction by 11 the department for fiscal, academic, or facilities distress. 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 Isl Bond 5 APPROVED: 3/21/2007 Exhibit A 03-07-2007 09:14 JDFlll Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, January 11, 2008 4:16 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Richardson, Scott on 1/11/2008 at 4:16 PM CST and filed on 1/11/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas, State of WARNING: CASE CLOSED on 01/26/1998 Document Number: 4181 Docket Text: RESPONSE re [4176] Order of December 21, 2007 by Arkansas, State of (Attachments: # (1) Exhibit A, Act 395 of 2007)(Richardson, Scott) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 2/12/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/11/2008] [FileNumber=1075449-0 ] [a025e51e79d39c79ba67025907cd934ad8bc4b0d36928763bf7f9903f31a89c73d8 d7f4471 b50b27998567a6f720aa60faf0ae6211 bdbfe4b75c7758b5f27583]] Document description:Exhibit A, Act 395 of2007 Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/11/2008] [FileNumber=1075449-l ] [7fb9987a8c1692f917deb5b9830564c6385221857531cb9a136c61e009318e08746 23afc1693fbe3e2d80f0146153a8c5e2e49525fb2bec8fde06ac8a6a3411f]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4182 Filed 01/14/2008 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 500 W. CAPITOL, ROOM 0444 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 Facsimile (501) 604-5149 January 14, 2008 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72024 Re: LRSD v. PCSSD, 4:82-CV-00866 Dear Mr. Walker: It appears that you have not filed a response to the Pulaski County Special School District's Motion for Declaration of Unitary Status (Doc. No. 4159), which was filed on October 29, 2007. Do you concede their motion? If not, why has no response been filed? Please advise by noon, on Tuesday, January 22, 2008. I also note that the State and the North Little Rock School District have filed a response (Doc. No. 4181) to my December 21, 2007 Letter-Order. If you wish to reply to this pleading, do so by noon, Tuesday, January 22, 2008. Original to the Clerk of Court cc: The Honorable J. Thomas Ray Other Counsel of Record Cordially, /s/ Wm. R. Wilson, Jr. Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Monday, January 14, 2008 2:10 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Order This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 1/14/2008 at 2:10 PM CST and filed on 1/14/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4182 Docket Text: ORDER responses due by noon Tuesday, January 22, 2008 re [4176] Order, [4159] MOTION for Order for a Declaration of Unitary Status filed by Pulaski County Special School District. Signed by Judge William R. Wilson, Jr on 1/14/08. (dac) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com - John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com 1/15/2008 John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID= 1095794525 [Date= 1/14/2008] [FileNumber= 107 6222-0 ] [9b46924dedf356eb7397040212d07959ac9fl 7602042c 1 b2481 fl 05d3284f0bdb70 46fff719b4a842adl24874634e131ae33a7f6e8ce961e2bbf0461cc19b6at]] 1/15/2008 Page 2 of2 , . Case 4:82-cv-00866-WRW Document 4184 Filed 01/15/2008 Page 1 of 2 INTI-IE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. Case No. 4:82cv866WRWIJTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS JOSHUA INTERVENORS' RESPONSE TO PCSSD'S MOTION FOR UNITARY STATUS 1. They deny the allegations of paragraph one. 2. They deny the allegations of paragraph two. 3. They deny the allegations of paragraph three. 4. They admit the allegations of paragraph four. WHEREFORE, the Joshua Intervenors oppose the Motion for Declaration of Unitary Status. Respectfully submitted, Isl John W. Walker 1 Case 4:82-cv-00866-WRW Document 4184 Filed 01/15/2008 Page 2 of 2 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501- 374-4187 (Facsimile) Email: johnwalkeratty@aol.com CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Opposition has been filed using the CM/ECF system on this 15th day of January, 2007 wherein on copy will be served on the following counsel: M. Samuel Jones, III sjones@mwsgw.com Christopher Heller heller@fec.net Scott P. Richardson scott.richardson@arkansasag.gov 2 Stephen W. Jones sjones@jlj.com Mark T. Burnette mBumette@mbbwi.com Office of Desegregation Mon. andreeroaf@odemail.com Isl John W. Walker Page 1 of2 polly From: ecf _ support@ared. uscourts. gov Sent: Tuesday, January 15, 2008 11 :57 AM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response to Motion This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. Notice of Electronic Filing U.S. District Court Eastern District of Arkansas The following transaction was entered by Walker, John on 1/15/2008 at 11 :56 AM CST and filed on 1/15/2008 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4184 Docket Text: RESPONSE to Motion re [4159] MOTION for Order for a Declaration of Unitary Status filed by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua. (Walker, John) 4:82-cv-866 Notice bas been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com - Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com 1/15/2008 .. \\ . .,,. Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalk:eratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/15/2008] [FileNumber=1077106-0 ] [4fe730110079004854c2a451 bc5efff96e21694690b61eee0739979fl 5276a21e9a 18320e6a6e6ec8514a5c659ed01539ec66b5378cdlcfc7ab215d5454f12aa]] 1/15/2008 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITILE ROCK SCHOOL DISTRICT PLAINTIFF V. Case No. 4:82cv866WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. JOSHUA INTERVENORS' RESPONSE TO DEFENDANTS INTERVENORS INTERVENORS THE PCSSD'S BRIEF IN SUPPORT OF MOTION FOR DECLARATION OF UNITARY STATUS The Joshua Intervenors respectfully oppose the motion that the PCSSD be declared unitary. The Joshua Intervenors respectfully request that this matter be set for hearing at which point the defendants be required to demonstrate by a substantial evidentiary showing that the schools have fulfilled the requirements of law and the agreements between the parties. To the court's inquiry regarding Joshua's delay in filing this response, Joshua respectfully shows the Court that issues related to compliance have been the subject of ongoing negotiations between Joshua and the PCSSD with the United States Department of Justice being the mediating source as provided by the settlement agreement. Joshua has 1 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 2 of 10 kept the Office of Desegregation Monitoring informed of the Joshua objections and has invoked the process set forth in the settlement agreement for resolution of disputes between the parties. The PCSSD motion was filed during the period that the invoked process was underway. 1 The matter was further set for negotiation on December 18, 2007 but was cancelled due to the unavailability for health related reasons of PCSSD counsel, M. Samuel Jones. The process is scheduled to resume on a date to be determined by the parties now that Mr. Jones health is no longer an issue. The Joshua objections are generally that the PCSSD has not substantially complied with the provisions of the settlement agreement and that it has not implemented the recommendations of this court's Office of Desegregation Monitoring. The PCS SD has generally taken the position that it is no longer required to implement the provisions of the settlement agreement because \"desegregation is over, as a matter of law.\" That opinion has been stated on many occasions by district officials though not embraced in any writing known to undersigned counsel. 1 . The motion filed was more or less mandated by the State officials represented by the Arkansas Legislature, the Arkansas Department of Education and the Attorney General's office. Neither of those officials have made a substantive assessment of the district's compliance with law and the existing agreements. 2 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 3 of 10 The ODM has submitted a number of monitoring reports which reflect PCSSD's dismal performance with respect to meeting its settlement and legal obligations. Joshua has persistently brought these matters to the attention of the court through ODM. The invocation of the process for raising objections and discussions pursuant thereto, as provided by the plan, have been underway now for more than two (2) years. The parties have not been able to resolve the issues. 1. To the argument set forth in the PCSSD \"Introduction,\" i.e., schools should ordinarily be under local control, Joshua points up that a district's having remedied acknowledged violations is prerequisite to that perspective. Whether that remedy has occurred as directed would ordinarily be a judicial determination. Local control as a concept, however, is subordinate to insuring that promised constitutional rights and remedies are implemented. 2. The PCSSD's observation that LRSD has been declared unitary, Section A, p. 2, is correct only in part. Moreover, because partial unitary status was induced without express direction of the LRSD Board of Education by recorded Board motion and vote, and by documentation of that fact which is now that earlier decision may be the subject of a new or other appropriate. 3. PCSSD argues that it is \"positioned to be declared unitary in the area of student assignments.\" The trouble with the PCSSD position is that upon the 3 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 4 of 10 ending of M to M funding, the schools located in Pulaski county which now house African American students from Little Rock will no longer accept those students. The students will thus be left homeless because LRSD, through the initiative of Ken James, and his successor Superintendent Roy Brooks, have closed schools located in the African American communities and have no plans for accommodating the return of those students upon cessation of M to M funding who now claim PCSSD schools as their home site. This is underway as those forces in the LRSD which initiated the Motion for Unitary status, i.e., ADE Director Ken James, LRSD board members Baker Kurrus and Larry Berkeley, and unidentified persons in the LR business community, seek to have constructed primarily for white children another school in west Little Rock. If this happens state imposed segregation will be continued. Furthermore, the students who will be necessarily returned from PCS SD will have no home school for, contrary to LRSD plans, schools in their neighborhoods - Rightsell, Mitchell, Badgett and Cloverdale have been closed. 4. PCSSD acknowledges that a number of its schools are out of compliance, p. 3. The district's figures presented were for 2006-7, not the present term. The court's Office of Desegregation Monitoring (ODM) noted that 5 of 23 elementary schools fell \"outside the plan described range for 2007-8, each above 4 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 5 of 10 the maximum black enrollment.\" The ODM said that the same situation persisted in 2006-7 as well. The district refers to Harris and relies upon court approval of district strategies for correcting the imbalance. The strategies presented to the court did not work and have largely been ignored by PCSSD. Importantly, PCSSD did not report is failed strategy to the court and as a result state imposed segregation clearly remains at Harris. Upon partial unitary status being declared for Mills, Fuller and College Station, those schools will become racially identifiable for white students will largely no longer be in the surrounding attendance zones. Fuller, College Station and Harris are physically unequal to the new Chenal school which will be virtually one race. Surely, the court will recognize the force of Plessey v. Ferguson. 1898, which required equal facilities at the least and as a condition for release require substantial new facilities for those areas which are equal to Chenal and Maumelle, the replacement site for Oak Grove. 5. On page 4 of the brief, the PCSSD addresses faculty and administrative assignments. Joshua Intervenors note that the ODM has addressed this area and has made recommendations regarding the matter. See ODM report dated December 15, 2006. 6. On page 5 of the brief under facilities, the PCS SD argues that unequal 5 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 6 of 10 schools are not \"vestiges of the prior dual system of education for the races.\" It is to be noted that Harris Elementary school on a comparative basis is dismal, in need of remodeling or replacement. While the PCSSD has spent hundreds of thousands of dollars on the facility, it is still unequal and in no way can be regarded as comparable to the new Chenal school, Baker and Pine Forest and Maumelle elementary and middle schools among others. The reference to the Lakeview case is misplaced because Lakeview did not address racial inequalities with respect to facilities. The schools which are located in majority African American communities in Pulaski County, with few exceptions, are not the equal of those schools which are located in middle class, majority white communities. 7. On page 5 of the brief, the PCS SD further argues that it has complied in good faith and that it has eliminated the vestiges of past discrimination to the extent practicable. The District's good faith is not demonstrated by the filing of this petition. The filing of this petition for full unitary status was not authorized by the Board. Indeed, board members recognize that there are still vestiges of discrimination in the district. Moreover, the ODM has found continuing vestiges of discrimination. See status reports of ODM dated August 16, 2006 and December 15, 2006. Joshua is prepared to demonstrate that the PCSSD Board only authorized its administration and counsel to seek partial unitary status. 6 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 7 of 1 O However, prodded by state officials, PCSSD administrators changed the record to reflect Board action for unitary status. 8. The PCCSD made commitments with respect to student discipline which are the partial subject of the referenced conflict between the parties now pending before the Department of Justice as well as the area of Special Education. The District has conceded that it was non compliant with respect to those areas. It has been only within the last two years that they have initiated actions to address their dereliction in those areas. The motion does not address at all the pertinent area of academic achievement, discipline, and special education, all of which are being discussed by the parties with the Department of Justice. 9. The district basically acknowledges that it has not complied with obligations under the settlement decree and under law. Because of intense pressure from the State of Arkansas, the present motion has been filed. That pressure includes dissolution of part of the district and the establishment of one and possibly to separate school districts, one for the Jacksonville area and another for Maumelle-Sherwood. It is contemplated that there will be other efforts to diminish and realign the PCSSD which efforts operate to the detriment of the African American students in all three districts. Those efforts violate the stated good faith commitments. 7 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 8 of 1 O 10. In this action, upon release from it, the State of Arkansas committed to fully support desegregation actions, improve achievement, and to otherwise eliminate all vestiges of state imposed discrimination. This was done in what is called the \"Allen letter\". In this respect, the State of Arkansas has established, contrary to the wishes of PCS SD, a charter school, the LISA Academy in the district which is racially identifiable (79% white). The State appears anxious to establish other racially identifiable schools in Pulaski County under guise and label of \"charter schools.\" The State is fully aware of the likely efforts of such privatization of public education. PCS SD is powerless to resist the State's resegregative initiative because of fear that the district will be taken over by the ADE as either academically or financially distressed. The court is obliged to respect the reports of ODM in considering the district's compliance. The PCS SD is also obliged to do so. The ODM is not a party but its role has been well defined and not modified by later court directive. The PCSSD (and the NLRSD) and the State of Arkansas may be of the view that this court does not respect the considered work of the ODM monitors because of the approach taken by the court during the LRSD proceedings now on appeal. Joshua submits that even in the absence of these objections the ODM reports establish that the PCSSD has not fulfilled its legal requirements approved by the 8 Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 9 of 10 court. Furthermore, by \"invoking the process\" and utilizing the Department of Justice Community Relations Department, Joshua has proceeded as the plan directs. This court should not interfere by crediting PCS SD' s request until the parties have exhausted the process and until Joshua has presented its complaints to the court. The PCSSD motion should be denied! Respectfully submitted, Isl John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501- 374-4187 (Facsimile) Email: johnwalkeratty@aol.com CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Opposition has been filed using the CM/ECF system on this 15th day of January, 2007 wherein on copy will be served on the following counsel: M.SamuelJones,ill sjones@mwsgw.com Christopher Heller heller@fec.net 9 Stephen W. Jones sjones@jlj.com Mark T. Burnette mBurnette@mbbwi.com Case 4:82-cv-00866-WRW Document 4185 Filed 01/15/2008 Page 1 O of 1 O Scott P. Richardson scott.richardson@arkansasag.gov 10 Office of Desegregation Mon. andreeroaf@odemail.com Isl John W. Walker Page 1 of2 pally From: ecf_support@ared.uscourts.gov Sent: Tuesday, January 15, 2008 12:02 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Brief in Support This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Walker, John on 1/15/2008 at 12:01 PM CST and filed on 1/15/2008 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4185 Docket Text: BRIEF IN SUPPORT filed by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua re [4184] Response to Motion {Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com - Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com 1/15/2008 - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID= 1095794525 [Date= 1/15/2008] [FileNumber= 1077124-0 ] [lb59dfaa5eda3412fD9c87c2f62b8034d5ae976489fea19435b171d029b9446a35e 7ba8c5bbd6054ddca4 70b 1 c06c77bd8:f9e0bf9e0bd04 fl 5b7fD 11 e91 e5955]] 1/15/2008 Case 4:82-cv-00866-WRW Document 4186 Filed 01/15/2008 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. Case No. 4:82cv866WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. JOSHUA INTERVENORS' REPLY TO STATE'S AND NLRSD'S RESPONSE TO DECEMBER 21, 2007 ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. The State is not a party to this proceeding. It's part in the motion is inappropriate unless it is to be considered as either a Motion to Intervene or for relief otherwise provided to it by agreements between the parties. There has been no showing of either. On the other hand, the State's response demonstrates the State's ability to direct the actions of the NLRSD (and the PCSSD). It's arguments are not appropriate unless and until it is made a party. 2. The NLRSD response was obviously dictated by the ADE and other state officials under threat of financial loss. 3. In reply to the Response to the Court's Letter Order, Joshua submits 1 Case 4:82-cv-00866-WRW Document 4186 Filed 01/15/2008 Page 2 of 4 that the Order was appropriate. The briefs of the LRSD and Joshua parties are before the Court of Appeals as is an amicus brief, denoting non party status, by the State as well. 4. The parties response essentially argues what LRSD is arguing on appeal. Those parties are in effect requesting this court to make a new ruling on the pending appeal while the standard of review used by the court in LRSD is being appealed and is under review itself. (Para(s). 3-4, p. 2 of Response.) 5. The parties' response is simply their assessment of the appeal before the Eighth Circuit. Their opinions of Joshua's pending Eighth Circuit case are not legally relevant to the issue set forth as a basis for deferring hearing. In short the Response to the Court's Order by an interloper party, the ADE, not properly before this court and who is an amicus in the referenced litigation, is inappropriate without express intervention for which there must be a factual and legal basis. The State must at least allege harm. The NLRSD' s argument which remains simply that notwithstanding the appeal in the Little Rock case, the court should proceed post haste to consider its motion. The court is reminded that this is the first motion filed by NLRSD in years. For NLRSD, time obviously has not been urgent in the past for considering the issue of unitary status. It is not urgent now and there is no demonstrated 2 Case 4:82-cv-00866-WRW Document 4186 Filed 01/15/2008 Page 3 of 4 prejudice to NLRSD. Indeed, the State of Arkansas has extended the time to NLRSD regarding this petition. The Court's Letter Order should therefore stand as issued. Respectfully submitted, Isl John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501- 374-4187 (Facsimile) Email: johnwalkeratty@aol.com CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Opposition has been filed using the CM/ECF system on this 15th day of January, 2007 wherein on copy will be served on the following counsel: M. Samuel Jones, III sjones@mwsgw.com Christopher Heller heller@fec.net Scott P. Richardson scott.richardson@arkansasag.gov 3 Stephen W. Jones sjones@jlj.com Mark T. Burnette mBumette@mbbwi.com Office of Desegregation Mon. andreeroaf@odemail.com Isl John W. Walker Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Tuesday, January 15, 2008 12:08 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Reply (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents ftled electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Walker, John on 1/15/2008 at 12:07 PM CST and filed on 1/15/2008 Case Name: Case Number: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Filer: Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4186 Docket Text: REPLY re [4181] Response (Non Motion) Joshua Intervenor's Reply to State's and NLRSD's Response to December 21, 2007 Order by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua (Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net 2/12/2008 M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com - Stephen W. Jones sjones@jlj .com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/15/2008] [FileNumber=1077136-0 ] [99288d5be7fe75c1422e044a3bb24144ed7b15e18569b127833acb0122ca7ce7183 40585ace9a56c0eb4f436fa78a5e4b1769d0ce74617346681634c8f6041lfj] 2/12/2008 Case 4:82-cv-00866-WRW Document 4187 Filed 01/15/2008 Page 1 of 1 \"Scott Richardson\" \u0026lt;Scott.Richardson@arkansas ag.gov\u0026gt; 01/15/2008 02:14 PM To \u0026lt;clerksoffice@ared.uscourts.gov\u0026gt; cc \"Sam Jones\" \u0026lt;SJones@mwsgw.com\u0026gt;, \u0026lt;sjones@jacknelsonjones.com\u0026gt;, \"Chris Heller\" \u0026lt;Heller@fec.net\u0026gt;, \u0026lt;johnwalkeratty@aol.com\u0026gt;, bee Subject LRSD v. PCSSD, et al., No. 4:82-cv-866 WRW Attached is an exhibit that was inadvertently left off of the Response to December 21, 2007, Letter Order (Dkt. # 4181) (Docketed as \"RESPONSE re 4176 Order of December 21, 2007 by Arkansas, State of) filed by the State of Arkansas and the North Little Rock School District. I understand that this exhibit can be appended to the original pleading by the clerk's office through the CM/ECF system. Please accept this as my request that you do so. Thank you for your assistance. Scott P. Richardson Assistant Attorney General 323 Center St., Suite 200 Little Rock, AR 72201 (501)682-1019 (501)682-2591 fax scott.richardson@arkansasag.gov Joshua Reply Brief. pdf Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Tuesday, January 15, 2008 2:33 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Notice of Docket Correction This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 1/15/2008 at 2:32 PM CST and filed on 1/15/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4187 Docket Text: NOTICE OF DOCKET CORRECTION re: [4181] Response re: Order of 12/21/2007. CORRECTION: Exhibit B was added as an attachment to docket entry [4181], based on the attached request. (thd) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com 1/15/2008 John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/15/2008] [FileNumber=1077392-0 ] [6bac00b54dbalc7e768e53ebldda7875e9bdd9851d43530fed40bb7f4014b3b77fe ecc977f94a8bddd3b536c204fadd5801d9435d0732ac0blcb9a14f658d2d5]] 1/15/2008 Page 2 of2 07-1866 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MRS. LORENE JOSHUA, ET AL. INTERVENOR/APPELLANTS v. LITTLE ROCK SCHOOL DISTRICT APPELLEE Reply Brief of Mrs. Lorene Joshua, Et Al. On Appeal From United States District Court Eastern District of Arkansas Western Division Hon. William R. Wilson District Judge Presiding Robert Pressman John W. Walker 22 Locust A venue Lexington, MA 02421 781-862-1955 John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (F) EXHIBIT B Table of Contents Table of Contents ............................................................................... . Table of Authorities ........................................................................... . Argument .......................................................................................... . The Arguments of the LRSD and the State Lack Merit A. The Original Section 2.7.1 Commitment Encompassed Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD B. The LRSD's Freedom to Craft an Implementation Plan During the Agreed Upon Duration of the Revised Plan C. This Court's Identification of the District Court's Remedial Authority D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default E. F. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the Hearing Requires Reversal 1 11 1 1 3 3 4 6 9 Certificate of Service............................................................................. 12 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Attachments i EXHIBIT B Table of Authorities Black v. Lane, 22 F.3d 1395 (7thCir. 1994) Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991) First Union National Bank, Trustee v. Pictet Overseas Trust Corp., 477 F.3d 616 (8thCir. 2007) Goss v. Lopez, 419 U.s. 565 (1975) Grand State Marketing Co. v. Eastern Poultry Distributors, 975 S.W.2d 429 (Ark.App. 1998) Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610 (1976) Knight v. PCSSD, 112 F.3d 953 (8thCir. 1997) LRSD v. PCSSD, 921 F.2d 1371 (8thCir. 1990) LRSD v. PCSSD, 83 F.3d 1013 (8thCir. 1996) LRSD v. PCSSD, 237 F.Supp.2d 988 (E.D.Ark. 2002) LRSD v. PCSSD, 470 F.Supp.2d 963 (E.D.Ark. 2004) LRSD v. PCSSD, 451 F.3d 528 (8thCir. 2006) LRSD v. PCSSD, Order Declaring the Little Rock School District Unitary, Feb. 23, 2007 McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (lstCir. 1980) Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1 (lstCir. 2002) Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) United States v. ITT Continental Baking Company. 420 U.S. 233 (1975) ii 10, 11 10 10, 12 10 2 10 4,9 3,4 8 2,4,6 6, 7, 11, 12 1, 6, 9 2, 12 10 9, 11 4 2 EXHIBIT B Rule 55, Federal Rules of Civil Procedure Restatement (Second) of Contracts, Sec. 201(1) (1981) iii 10 2 EXHIBIT B The Arguments of the LRSD and the State Lack Merit LRSD and the State ignore the breadth, in context, of LRSD's original commitment in Section 2. 7 .1; LRSD's agreement necessarily required multiple actions creating a structure for implementation fairly characterized by the \"deeply embedded\" language later employed by the District Court, after LRSD twice failed to fulfill its voluntary commitments. They do not account for these defaults, or the District Court's remedial authority in such circumstances. They minimize, or ignore entirely the District Court's communicating an important change in the criteria for judging LRSD compliance only in its February 23, 2007 post-hearing opinion, thereby denying Joshua counsel the opportunity to challenge LRSD compliance with know ledge of all governing standards. A. The Original Section 2. 7 .1 Commitment Encompassed a Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD In 1998, the District Court approved the Revised Desegregation and Education Plan (Revised Plan), to which the Joshua Intervenors and the LRSD had agreed. LRSD, 451 F.3d at 3. Section 2.7.1 provided that: LRSD shall assess the academic programs implemented pursuant to Section 2. 7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. While only 65 words and 2 sentences, this was a commitment of considerable breadth. First. The text referred to annual reviews of the specified programs in terms of 1 EXHIBIT B - their effectiveness in improving African-American student achievement. 1 The text also obligated the LRSD to modify or replace programs shown to be ineffective. Second. The programs, identified in Sec. 2. 7 of the Revised Plan, were those \"designed to improve and remediate the academic achievement of African American students .. . . \" The LRSD \"identified almost 100 [such] programs .... \" LRSD, 237 F.Supp. at 1076, n. 135. Third. The parties interpreted \"assess\" and \"assessment\" to require evaluations, a more detailed study than an assessment, of at least the key Section 2.7 programs. 237 F.Supp. at 1076-80; LRSD (dist. ct.), 2-23-07, at 13-15.2 The mere agreement to and approval of these two sentences was obvious! y not the goal of the parties. The objective meaning of these words, in the context of a school district of substantial size, contemplated a great deal of activity by its officers - and employees. There would be a need, inter alia, for the adoption of policies and guidelines; the employment of personnel capable of performing assessments and evaluations; interaction with those involved in the content of LRSD curriculum; communication with and training of school-level personnel; reports on 1 In 1997-98, the LRSD enrolled 24,886 students, 16,664 of whom were African Americans; LRSD then operated 50 schools. [ODM enrollment report, Dec. 7, 2007] 2 As the district court notes [LRSD, 2-7-07, at 2, 15] RESTATEMENT (SECOND) OF CONTRACTS Sec. 201(1) (1981) provides: \"Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.\"; see also U.S. v. ITT Continental Baking Co., 420 U.S. 233,238 (1975) (reliance on \"any technical meaning words used may have had to the parties\"); Grand State Marketing v. Eastern Poultry Distribs., 975 S.W.2d 429,442 (Ark.App. 1998) (\"In particular, when a technical term is used, the trier of fact may determine in what sense the term was used.\") 2 EXHIBIT B - implementation to high level administrators and the school board; oversight; and documents containing completed program studies. Not infrequently, a phrase is used to describe an endeavor of considerable complexity. Here, a reasonable construction of the parties' broad voluntary agreement was that it contemplated, over time, multiple, mature actions at different levels and locales in the LRSD, i.e., that a structure to carry out the parties' broad agreement be \"deeply embedded\" in the LRSD curriculum and instruction program. B. The LRSD's Freedom to Craft an Implementation Plan During the Agreed Upon Duration of the Revised Plan Section 11 of the Revised Plan provided for implementation for a three-year period, assuming substantial compliance with its terms. In this period, the system's implementation of Section 2.7.1 was not constrained by any directive(s) of the District Court. The LRSD was free to fashion and implement steps to comply with the parties' agreement. C. This Court's Identification of the District Court's Remedial Authority Prior to the approval of the Revised Plan, this court addressed in this case the implementation and enforcement of agreements of the parties. The appeal in LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990) followed the parties' agreement to a desegregation plan for each of the three districts involved in the case, as well as an \"Interdistrict Desegregation Plan\" and a \"Settlement Agreement\" concerning obligations of State officials. 921 F.2d at 1378-80. Rejecting rulings of the District Court, this court approved the parties' plans. The court noted that \"the parties have all agreed to continued monitoring\" and continued [at 1386]: 3 EXHIBIT B It is important for the settlement plans to be scrupulously adhered to -- and here we have in mind especially the kinds of programs that the plan contemplates for the Incentive Schools -- and it will be the job of the District Court to see that the monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments. This court also addressed the District Court's authority in the concluding section of its 1990 opinion, which summarized this court's rulings and directives. This court wrote: 8. The District Court is instructed to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require. See also Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367,378 (1992) (\"A consent decree no doubt embodies an agreement of the parties and thus in some - respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.\"); Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997) (parties' agreement \"becomes, in a sense, a particularization of federal law applicable to these parties\"). D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default In 2002, following hearings, the District Court ruled on the LRSD's effort to show compliance with the Revised Plan sufficient to achieve full unitary status and the termination of court jurisdiction. The court clustered the Plan provisions at issue in six areas. LRSD, 237 F.Supp. at 1086. In all areas but one, implementation of Plan provision 2. 7 .1, the court found substantial compliance and ended court supervision. 4 EXHIBIT B 237 F.Supp. at 1086, 1089. As to 2.7.1, the court found an absence of substantial compliance. Id. The District Court's discussion, 237 F.Supp. at 1076-80, may be summarized as follows: [i] LRSD interpreted Sec. 2.7 .1 consistently to obligate the district to prepare program evaluations of the key 2.7 programs, which by the text of that section were not limited to the programs in Plan Section 5. [At 1076-80] [ii] The school board adopted an evaluation policy belatedly, i.e., in February 2001, only in the month before LRSD filed its Compliance Report (at the time specified in the 1998 Revised Plan), seeking a complete release from court supervision. [At 1078, para. 7] [iii] LRSD lacked the personnel needed to prepare adequate evaluations. [At 1081, 5-16-01 E-mail] [iv] LRSD's March 2001 Compliance Report was marked by a lack of candor, - exaggerating the extent of completion of evaluations; none were complete. [At 1079- 80, para. 14] [v] In view of its earlier consistent position that Sec. 2.7.1 required the preparation of evaluations of key 2. 7 programs, LRSD's contrary position in the hearing also evidenced a lack of candor. [At 1078, para. 10] Faced with an absence of the evaluations which LRSD had agreed to be necessary and evidence of bad faith, the District Court did not simply plead with LRSD to comply. Rather, in keeping with this court's instructions in 1990, the Court devised a \"Compliance Remedy.\" This remedy required LRSD, among other things, to [237 F.Supp. at 1087-88]: [i] establish \"a program assessment procedure ... that can accurately measure the effectiveness of each program implemented under Sec. 2. 7 in improving the academic achievement of African-American students\"; [ii] prepare 5 EXHIBIT 8 and use certain \"program evaluations\" which it had identified; [iii] continue during a specified period to assess each 2.7 program and use this and other available information in deciding on program modification and elimination; [iv] maintain certain written records regarding these assessments, including records regarding program modification and elimination, a topic specifically addressed in Sec. 2.7.1; and [iv] use a particular external expert or someone else with equivalent qualifications to prepare the evaluations, which the LRSD had referenced. There is no proper basis for criticism of the District Court regarding the 2002 remedy. Faced with LRSD default, the court extended the implementation period and identified actions inherent in the parties' 2. 7 .1 agreement, as construed by the parties. The District Court fulfilled the responsibility identified in strong terms by this court in 1990, in order to give Joshua Intervenors the benefit of the parties' bargain. Importantly, the LRSD neither sought clarification of the meaning of this remedy, nor appealed. LRSD, 470 F.Supp. at 969; LRSD, 451 F.3d at 536. E. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default In 2004, the LRSD sought a termination of court supervision based upon asserted compliance with the court's 2002 remedy and Sec. 2.7.1. The District Court again found a lack of substantial compliance. Faced with a second instance of noncompliance, the court set forth the second Compliance Remedy, which was, intentionally, more specific than the 2002 remedy. LRSD, 470 F.Supp. at 997. The factors on which the court relied in finding non-compliance and framing its 2004 remedy included the following: [i] the LRSD had again recognized that its 6 EXHIBIT B obligation encompassed some program evaluations; [470 F.Supp. at 970-71]; [ii] although, as LRSD's expert witness testified, all districts implement sub-programs within a curriculum, which can be and should be evaluated [Dr. Ross, hearing transcript at 195; 470 F.Supp. at 986], the \"evaluations\" which the LRSD presented were global overviews of the entire literacy and math-science curricula, not studies of particular programs which could be used to make the requisite decisions about program modification and elimination [ 4 70 F.Supp. at 971-72, 987, 990]; [iii] neither global overview addressed the key research question identified in LRSD's assessment\\evaluation policy, i.e., \"has this curriculum/instruction program been effective in improving and remediating the academic achievement of AfricanAmerican students?\" [470 F.Supp. at 987, 990]; [iv] LRSD did not maintain the - records regarding its program studies required in paragraph B of the 2002 Compliance Remedy [470 F.Supp. at 994-95]; [v] the shortcomings in LRSD performance were again attributable to staffing problems in the district [470 F.Supp. at 985-86]; [vi] in the opinion of the LRSD expert, Dr. Ross, a system the size of the LRSD could be expected to provide four or five evaluations a year [ 4 70 F.Supp. 994]; [vii] LRSD had failed to provide to ODM and Joshua Intervenors promised progress reports on the literacy and math-science evaluations [470 F.Supp. at 988-89, 991]. There is no proper basis for criticism of the District Court regarding the 2004 remedy. Faced with a second LRSD default, the court addressed more specifically required actions and steps to achieve them. No goal, required action, or standard was outside the parties' broad agreement. Except when it came to court, LRSD always 7 EXHIBIT B identified its obligations as including some evaluations. When LRSD had twice failed in this area, the court drew upon the testimony of LRSD's expert to identify the number of evaluations to require in its second remedy. LRSD having twice failed with regard to adequate personnel, the court was specific with regard to both in-house staff (PRE) and external experts (to do evaluations). The court's deeply embedded language was not a requirement untethered to the original 2. 7 .1 commitment, or fairly characterized as made up out of whole cloth, but instead a provision fairly descriptive of the LRSD landscape in a full compliance with Section 2. 7 .1 setting. Had LRSD complied at the outset, or after entry of the first compliance remedy, the District Court would not have had the need to articulate a global standard, geared to the particular subject matter of Sec. 2. 7 .1, to help measure compliance. The District Court could not allow itself to be \"run off.\" It could not condone non-compliance. It had a responsibility, which its second remedy sought to address. To the extent relevant on this appeal, it should be noted that no part of the argument made by the dissenting judge in this court's 2006 decision withstands scrutiny. See 451 F.3d at 541-43. First. The interpretation of the word \"assessment\" and the identification of the type of program studies required overall by Sec. 2.7.1 ignores two critical factors. These are LRSD's repetitive construction of its bargain as requiring some evaluations and the relevance of the parties' position on this to proper interpretation of Sec. 2. 7 .1. 8 EXHIBIT 8 See n.2, supra.3 Second. Having qualified personnel was an inherent element of the original 2. 7 .1 bargain; and the District Court dealt specifically with this topic only after a second default, each encompassing personnel deficiencies, as previously shown. Third. The \"deeply embedded\" standard, invoked only after two defaults, comes straight from the broad 2. 7 .1 bargain, by \"reasonable implication, \"4 as previously shown. A focus on the status and completeness of the identified actions for achieving compliance with Sec. 2. 7 .1 is more (not less) objective than application of the \"good faith\" standard ultimately employed. The State expresses concern about the impact of the \"deeply embedded\" concept on the two other Pulaski County school districts. [State brief at 16-17] No factual basis for this concern is shown. The State shows no order employing this standard regarding these systems (Pulaski County and North Little Rock). The State does not relate its concern to any particular remaining remedial provision in one of these districts. Beyond this, the State does not recognize that the standard is a part of LRSD's voluntary substantive obligation drawn from Sec. 2.7.1. and invoked by the District Court only after a second LRSD default. F. The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the 3 Factual findings bearing upon contract interpretation are reviewed for clear error. LRSD v. PCSSD, 83 F.3d 1013, 1017 (8thCir. 1996). Given the volume of evidence relied upon, the lower court's findings that Sec. 2.7.1 encompassed evaluations are unassailable. 4 Knight v. PCSSD, 112 F.3d 953, 954 (8th Cir. 1997). 9 EXHIBIT B Hearing Requires Reversal Prior notice, including of governing standards, is a fundamental and required element of fairness in many contexts. See [A] Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1 (1st Cir. 2002) (district court entered default judgment on ADA claim, but after hearing conducted pursuant to Rule 55(b)(2), Fed.R.Civ.Pro., dismissed claim on the merits; while the district court could conduct a hearing \"to 'establish the truth of any averment' in the complaint,\" it could only do so if it \"had made 'its requirements known in advance to the plaintiff, so that [he] could understand the direction of the proceeding and marshal! such evidence as might be available to [him].' Id. (quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 229 (lstCir. 1980).\"; [B] Black v. Lane, 22 F.3d 1395, 1398 (7thCir. 1994) ( opinion written by Circuit Judge Lay, sitting by designation) (same); [C] First Union National Bank v. Pictet Overseas Trust, 4 77 F.3d 616, 621 (8thCir. 2007) ( discussing possible applicability of law of the case doctrine; \"Even had the district court intended to resolve the fiduciary duty issue in its Interest Rate Decision, it failed to do so with sufficient directness and clarity to establish the settled expectations of the parties necessary for the subsequent application of the law of the case doctrine.\"); [D] Goss v. Lopez, 419 U.S. 565, 581-82 (1975) (in context of school suspension for disciplinary reason, required element of affording procedural due process rights is that \"the student [must] first be told what he is accused of doing and what the basis of the accusation is\"; this affords student \"opportunity to present his side of the story\" in an informed manner); [E] Hynes v. Mayor and Council of Borough of Oradell, 425 10 EXHIBIT B U.S. 610, 620 (1976) (whether as to law or rule persons \"of common intelligence must necessarily guess at its meaning and differ as to its application\"); [F] Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237,246 (1991) (\"[A] school board is entitled to a rather precise statement of its obligations under a desegregation decree.\"). The District Court departed from this basic standard of fairness. In Part K of the 2004 Compliance Remedy, the District Court identified LRSD's \"obligations under Sec. 2. 7 .1 as specified in the Compliance Remedy [ of 2004]\" as the measuring rod for assessing the district's right to a termination of court jurisdiction. [ 4 70 F.Supp. at 1000] That remedy, in Part B, included the \"deeply embedded\" language, which even referred to \"[p]art ofLRSD's proof, at the next compliance hearing .... \" [470 F.Supp. at 998] The District Court gave notice of changing this standard only in its post-hearing opinion. [LRSD, 2-7-07, at 16-17] Obviously, Joshua counsel could not, on a key point, \"understand the direction of the proceeding and marshall such evidence as might be available to [them]\" [Ramos-Falcon and Black. supra], when the change to the \"good faith\" standard was set forth only after the evidentiary hearing was completed. Moreover, \"management orders\" and guidance to counsel before the hearing magnified the harm. By letter of December 6, 2006, the District Court required each side to present by December 8 for each witness \"a fair and accurate summary of the expected testimony ... and the length of time you estimate for direct examination.\" In a letter of January 18, 2007, the court stated that each side would be limited to 7 11 EXHIBIT B hours for its direct case and 2 hours for cross-examination. The court added: \"Crossexamination must be brisk and to the point, i.e., a Blitzkrieg, not an invasion of Normandy.\" [See attachments to this brief] In this setting, Joshua counsel had to focus with great care on the existing compliance standards. LRSD argues that Intervenors should have perceived the change in standards. [LRSD brief at 37-38] Neither the Court of Appeals, nor the District Court before the 2006 hearing or its decision, identified the good faith standard ultimately used by the lower court. Whether one refers to the law of the case or the criteria for assessing compliance, the standard actually used was not timely identified with \"sufficient directness and clarity .... \" First Union National Bank, 477 F.3d at 621. Moreover, LRSD does not recognize that the deeply embedded standard is a substantive element - of Sec. 2. 7 .1, fairly construed. The State discusses the law of the case concept. It is, however, silent on the problem here, the timing of the district court's changing in an important way the standards for judging compliance. [States's brief at 10-11] The State also does not recognize the nature of the deeply embedded standard; it is an element of the substantive bargain of Intervenors and LRSD in Sec. 2.7.1; it describes steps necessary to move from a few words on a page to a reality in the operation of the district. It is not, as the State discussion implies, a global standard, apart from Sec. 2. 7 .1, for assessing whether there is sufficient compliance with the agreement to justify a termination of the case as to LRSD or another district. Compare State brief at 12-13. 12 EXHIBIT B Conclusion This court should vacate the judgment of dismissal and: [i] direct the District Court, after a hearing, to reinstate a compliance remedy for an additional period; [ii] or, alternatively, direct that the District Court, after a hearing, determine the compliance of the LRSD with the second remedy, including the \"deeply embedded\" component as a substantive element of the remedy; [iii] or, alternatively, direct that the District Court, after a hearing, determine the compliance of the LRSD with the second remedy, utilizing the good faith standard in doing so. 13 Respectfully submitted, /s/,Tohn W. Walker John W. Walker, AR No. 64046 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 E-Mail: johnwalkeratty@aol.com Robert Pressman 22 Locust A venue Lexington, MA 02421 (781) 862-1955 EXHIBIT B CERTIFICATE OF SERVICE I, JOHN W. WALKER, the undersigned counsel for the Joshua Intervenors, Appellant herein, hereby certify that a true and correct copy of the foregoing Reply Brief has been served on this 18st day of December, 2007, by dispatch to a third-party commercial carrier for overnight delivery to the United States Court of Appeals for the Eighth Circuit, Clerk's Office, Thomas F. Eagleton Court House, Room 24.329, 111 South 10th Street, St. Louis,Missouri 63102-1125 and via U.S. Mail and/orhanddelivery to Mr. Chris Heller, FRIDAY, ELDREDGE \u0026amp; CLARK, 400 West Capitol, Suite 2000, Little Rock, AR 72201 and to the Office of Desegregation Monitoring, One Union National Plaza, 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201. ls/John W. Walker 14 EXHIBIT B CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to Federal Rules of Appellate Procedure 32(a)(7)(C) and Eighth Circuit Rules 28A(c), that this Reply Brief (exclusive of the table of contents, the table of authorities, any addendum, and any certificates of counsel) contains 3427 words. This brief complies with the typeface requirements of FRAP.32(a)(5) and the type style requirements of FRAP.32(a)(6) because of this brief has been prepared in a proportionally spaced typeface using Wordperfect 9.0 in Times New Roman, 14-point. The undersigned has provided one virus free digital version of this brief to the Clerk of the United States Court of Appeals for the Eighth Circuit and to all counsel of record. The digital version of this brief has been furnished on a 3.5\" computer diskette in Portable Document Format (also known as PDF or Acrobat Format). The digital version was generated by printing to PDF from the original word processing file. Dated: December 18, 2007 ls/John W. Walker 15 EXHIBIT B Case 4:82-cv-00866-WRW Document 4188 Filed 01/16/2008 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 500 W. CAPITOL, ROOM 0444 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 Facsimile (501) 604-5149 January 16, 2008 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72024 Re: LRSD v. PCSSD, 4:82-CV-00866 Dear Mr. Walker: Regardless of whether there are \"interloper parties\" in the case, has Joshua taken the position at any time, in the District Court or in the Court of Appeals, that the standard applied in the most recent Little Rock School District Order is the standard to be applied in the North Little Rock and Pulaski County School District cases? I may have missed something, but I don't believe this issue was specifically addressed in your response of yesterday. Please let me have your specific response by noon, Tuesday, January 22, 2008. Original to the Clerk of Court cc: The Honorable J. Thomas Ray Other Counsel of Record Cordially, Isl Wm. R. Wilson, Jr. Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 16, 2008 2:28 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Order This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including prose litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 1/16/2008 at 2:27 PM CST and filed on 1/16/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4188 Docket Text: LETTER/ORDER directing additional response of Joshua lntervenors by noon 'January 22, 2008 re [4184] Response to Motion filed by Leslie Joshua, Wayne Joshua, Lorene Joshua, Stacy Joshua. Signed by Judge William R. Wilson, Jr on 1/16/08. (dac) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com - John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, 1orap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com 1/17/2008 John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [ST AMP dcecfStamp ID=l 095794525 [Date= 1/16/2008] [FileNumber=l 078278-0 ] [56cd5acef3c3541f6a87a4b590b4b62c20f86c7935dd0154blf28c99944fe5df631 00d10c8e5cf409301flfbc4b1300dd936bcela22ead0a3f84badb2b9df60f]] 1/17/2008 Page 2 of2 Case 4:82-cv-00866-WRW Document 4190 Filed 01/16/2008 Page 1 of 2 LAW OFFICES MITCHELLWILLIAMS SELIG  GATES  WOODYARD  PLLC M . SAMUEL JONES, Ill 01,tECT DIAL: 501688-8812 E-MAIL : S.JONE  @MWSGW. COM Honorable William R. Wilson, Jr. United States District Court 600 W. Capitol Ave., Rm. 423 Little Rock, Arkansas 72201 JANUARY 16, 2008 Re: LRSD v. PCSSD, et al. U.S.D.C. No. 4:82CV00866WRWIJTR Dear Judge Wilson: 425 WE5T CAPITOL AVENUE, SUITE I BOO LITTLE ROCK, ARKANSAS 72201 3525 TELEPHONE 501 688-8800 FAX 501 6888807 The Court is probably aware that PACT, right before Christmas, filed a \"Response\" to the PCSSD Motion for Unitary Status. The PCSSD filed a Reply which was thereafter followed on January 9, 2008 by both a Motion by PACT to file a belated response and a Sur Reply. The PCSSD is going to respond in a timely fashion to PACT's Request to File a Belated Response. I also need to submit to the Court, in an appropriate form, an affidavit from the District's Assistant Superintendent for Business Affairs regarding the issue of what dues are withheld from paychecks and to whom or what they are paid. The procedural posture of the PACT \"claim\" seems a little odd and I am trying to figure out what to call this further pleading. I just wanted to apprise the Court and the parties that I am working on this, hope to have fresh papers in the Court's hands by Friday, and trust this will be satisfactory. Thank you. MSJlab Cordially yours, MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODY ARD, P.L.L.C. By Isl M. Samuel Jones, III LITTLE RocK, ARKANSAS  ROGERS, ARKANSAS  AUSTIN, TEXAS cc. Case 4:82-cv-00866-WRW Document 4190 Honorable William R. Wilson, Jr. January 16, 2008 Page2 cc Via Email: Mark Terry Burnette John W. Walker Clayton R. Blackstock Philip E. Kaplan Christopher J. Heller Stephen W. Jones John Clayburn Fendley, Jr Scott P. Richardson Office of Desegregation Monitor Via US Mail: Timothy Gerard Gauger James M. Llewellyn , Jr. William P. Thompson Filed 01/16/2008 Page 2 of 2 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, January 16, 2008 4:30 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW little Rock School, et al v. Pulaski Cty School, et al Response (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Jones, M. on 1/16/2008 at 4:30 PM CST and filed on 1/16/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document N um her: 4190 Docket Text: RESPONSE re [4188] Order regarding PACT's Request to File a Belated Response by Pulaski County Special School District (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/17/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/16/2008] [FileNumber=1078646-0 ] [5270da50b09118371a3dd85c21f4adb98f38480e14a0fdd3292779dbcfe87354a94 dfe79bbd3f768f432c945744cc221 b3be532edaf6e40edl b4312c018fa836]] 1/17/2008 Case 4:82-cv-00866-WRW Document 4191 Filed 01/18/2008 Page 1 of 2 LAW OFFICES MITCHELLWILLIAMS SELIG  GATES  WOODYARD  PLLC M . SAMUEL JONES, Ill DlftECT DIAL: 501 6888812 EMAIL: SJONES@MWSGW.COM Honorable William R. Wilson, Jr. United States District Court 600 W. Capitol Ave., Room 423 Little Rock AR 72201 Re: LRSD v. PCSSD, et al. January 18, 2008 425 WEST CAPITOL AVENUE, SUITE 1 800 LITTLE RocK, ARKANSAS 72201 -3525 TELEPHONE 50 1 688-8800 FAX SO I 688-8807 U.S.D.C. No. 4:82CV00866WRWIJTR Dear Judge Wilson: Several days ago I wrote the Court concerning the papers PACT has filed. I predicted the PCSSD would be filing additional papers today. We have encountered logistical delays in obtaining pleadings and orders that are circa 1984 and 1989 but have now secured them. Since the latest PACT filings are dated January 9 and considering the federal holiday on Monday, January 21, 2008, I believe our additional papers, if transmitted to the court on or before January 22, 2008, would be timely. This is also the date the Court has been consistently using in suggesting further responses from Joshua and perhaps others. Accordingly, that is our new target date for additional filings and responses. MSJlab cc Via Email: Mark Terry Burnette John W. Walker Cordially yours, MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODYARD, P.L.L.C. By Isl M. Samuel Jones, III LITTLE ROCK, ARKANSAS  ROGERS, ARKANSAS  AUSTIN, TEXAS 1127447.1 Case 4:82-cv-00866-WRW Document 4191 Honorable William R. Wilson, Jr. January 18, 2008 Page2 Clayton R. Blackstock Philip E. Kaplan Christopher J. Heller Stephen W. Jones John Clayburn Fendley, Jr Scott P. Richardson Office of Desegregation Monitor cc Via US Mail: 1127447.1 Timothy Gerard Gauger James M. Llewellyn , Jr. William P. Thompson Filed 01/18/2008 Page 2 of 2 Page 1 of2 - pol_lY_ ___________ _____ ____________ From: ecf_support@ared.uscourts.gov Sent: Friday, January 18, 2008 3:03 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response (Non Motion) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Jones, M. on 1/18/2008 at 3:02 PM CST and filed on 1/18/2008 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document Number: 4191 Docket Text: RESPONSE re [4188] Order regarding PACT's Request to File a Belated Response by Pulaski County Special School District (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeld.nef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/18/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odrnemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn, Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l/18/2008] [FileNumber=1080472-0 ] [a8ad57a4ad578261cd064477cb0d80345dl43e534a3ee46496c9d712d86b3737660 fe2d4c032f2c729ccf70acf8f656cd4b13465fl 76fa3fd6c1540f34af0151]] 1/18/2008 Case 4:82-cv-00866-WRW Document 4192 Filed 01/18/2008 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT v. No. 4:82-cv-866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MOTION FOR SUBSTITUTION OF COUNSEL PLAINTIFF DEFENDANTS The State of Arkansas and the Arkansas Department of Education (ADE), by and through its attorney, Assistant Attorney General Scott P. Richardson, and for its Motion for Substitution of Counsel, states: 1. Deputy Attorney General Tim Gauger has left the employ of the Attorney General's Office. 2. Assistant Attorney General Scott P. Richardson has been given responsibility as lead attorney for this case. WHEREFORE, the Arkansas Department of Education (ADE) and the State of Arkansas request that former Deputy Attorney General Tim Gauger be withdrawn from this case and that Assistant Attorney General Scott P. Richardson be substituted in his stead and for all other just and proper relief to which they may be entitled. Respectfully submitted, DUSTIN McDANIEL Attorney General BY: Isl Scott P. Richardson SCOTT P. RICHARDSON, Bar No. 01208 Case 4:82-cv-00866-WRW Document 4192 Filed 01/18/2008 Page 2 of 3 Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, AR 72201-2610 (501) 682-1019 direct (501) 682-2591 facsimile Email: scott.richardson@arkansasag.gov ATTORNEYS FOR SEPARATE DEFENDANT ARKANSAS DEPARTMENT OF EDUCATION CERTIFICATE OF SERVICE I hereby certify that on January 18, 2008, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the following: Mr. Clayton R. Blackstock cblackstock@mbbwi.com Mr. Mark Terry Burnette mbumette@mbbwi.com Mr. John Clayburn Fendley , Jr clayfendley@comcast.net Mr. Christopher J. Heller heller@fec.net Mr. M. Samuel Jones , III sjones@mwsgw.com Mr. Stephen W. Jones sjones@jlj.com Mr. John W. Walker johnwalkeratty@aol.com Office of Desegregation Monitor andreeroaf@odmemail.com; aroaf@seark.net; paramer@odmmail.com 2 Case 4:82-cv-00866-WRW Document 4192 Filed 01/18/2008 Page 3 of 3 I, Scott P. Richardson, Assistant Attorney General, do hereby certify that I have served the foregoing and a copy of the Notice of Electronic Filing by depositing a copy in the United States Mail, postage prepaid, on January 18, 2008, to the following nonCM/ ECF participants: Mr. Robert Pressman 22 Locust A venue Lexington, Mass. 02173 3 Isl Scott P. Richardson SCOTT P. RICHARDSON Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, January 18, 2008 4:08 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Motion to Substitute Attorney This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Richardson, Scott on 1/18/2008 at 4:07 PM CST and filed on 1/18/2008 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Arkansas, State of Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4192 Docket Text: MOTION to Substitute Attorney by Arkansas Department of Education, Arkansas, State of (Richardson, Scott} 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mbumette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net - M. Samuel Jones , III sjones@mwsgw.com, abray@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com 1/22/2008 Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Office of the Governor State Capitol Room238 Little Rock, AR 72201 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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I I I I I I I I I I I I I I I I I I I No. 07-1866 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT LITTLE ROCK SCHOOL DISTRICT PLAINTIFF/ APPELLEE LORENE JOSHUA, et al. INTERVENOR PLAINTIFFS/ APPELLANTS V. NORTH LITTLE ROCK SCHOOL DISTRICT, PULASKI COUNTY SPECIAL SCHOOL DISTRICT, and STATE OF ARKANSAS DEFENDANTS On Appeal from the United States District Court for the Eastern District of Arkansas, Little Rock Division Honorable William R. Wilson AMICUS CURIE BRIEF OF THE STATE OF ARKANSAS IN SUPPORT OF AFFIRMANCE IN FAVOR OFAPPELLEE LITTLE ROCK SCHOOL DISTRICT DUSTIN McDANIEL Attorney General State of Arkansas SCOTT P. RICHARDSON #01208 MATTHEW B. McCOY #01165 Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, AR 72201 (501) 682-1019 ATTORNEYS FOR ST A TE OF ARKANSAS I I I I I I I I I I I I I I I I I I I TABLE OF CONTENTS Table of Contents .. ............................ .. .... .. ............... .. ..................................... .. .... i Table of Authorities ................................................... .. ................. .. ..................... ii Statement of Amicus Curiae and Summary of the Argument.. .... .. ........ ............. I Argument. ... ....................... .. ............... ............. ............. .... ..... ...................... .... ..... 4 I. NO CLEAR ERROR IN THE COURT'S CREDIBILITY DETERMINATIONS ................................. ............ ..... 4 II. NO CLEAR ERROR IN THE COURT'S DETERMINATION THAT LRSD SATISFIED ITS 2.7.1 OBLIGATIONS ...... .. .... .. .... .. .. 7 II. GOOD FAITH COMPLIANCE WITH A DESEGREGATION PLAN IS THE LAW OF THIS CASE, NOT \"DEEPLY EMBEDDED\" COMPLIANCE .... .. .. .. ............ .... ... ... I 0 Conclusion ...................... .... .. .. .. ... ....... ... ..... .. .. ......... ..... ... ...... ..... .. .... ...... ... .. ...... I 7 Certificate of Service .......... .. ............ ..... .. ......................... .. ................... .. ......... . 19 Certificate of Compliance .... ... ... .... ..... ...... .. ... .. .............. .. ..... .. ............... .. ...... .... 20 I I I I I I I I I I I I I I I I 1 I I TABLE OF AUTHORITIES CASES PAGE Anderson v. Beseimer City, 470 U.S. 564, 105 S.Ct. 1504 (1985) ...... .... ................ .. ........ ................... .. ... .... .. ... ..... 6 Arizona v. California, 460 U.S. 605 , 103 S.Ct. 1382 (1983) .................................... ............... ........ ..... .. ...... 11 Board of Education v. Dowell, 498 U.S. 237, 111 S.Ct. 630 (1991) .... ..... ... .. .. ... .......... ......... .. ........ .. ............... 2, 12, 13 Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753 (1955) ... .. .... 3, 12 Enterprise Rent-a-Car, Inc. v. Rent-a-Wreck of America, Inc., 181 F.3d 906 (8th Cir. 1999) .............................. .. ............. .... .. ............. 5 First Union Nat. Bank v. Pictet Overseas Trust Corp. , Ltd. 477 F.3d 616 (8th Cir. 2007) ............ ................. .... ..... ............... .... 10-11 Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430 (1991) ............... ............. .. 13 Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689 (1968) .. ... .. ....................................... .. ..... .. ....... .. ........ .. 12 Little Rock School District, et al. v. Armstrong, et al. , 359 F.3d 957 (8th Cir. 2004) ......... .... ...... .. ... .. ...... .. .. ..... ... ..... .. ... 3, 5, 14 LRSD v. NLRSD, 451 F.3d 528 (8th Cir. 2006) ............ ........... .. .. ........ 3, 15, 16 LRSD v. PCSSD, et al., 237 F.Supp.2d 988 (E.D. Ark. 2002) ................ 3, 13 LRSD v. PCSSD, 470 F. Supp. 2d 963 (E.D. Ark. 2004) ... ... ............ 2, 14, 15 LRSD v. PCSSD, et al., 2007 WL 624054 (E.D. Ark. Feb. 23, 2007) .... ....................... ....... ................... 8, 9, 10, 15 United States v. Hively , 437 F.3d 752 (8th Cir. 2006) ....... ........................... 11 II I I I I I I I I I I I I I I I I I I I United States v. Manfre, 456 F.3d 871 (8th Cir. 2003) ................................ 11 United States v. McCarthy, 97 F .3d 1562 (8th Cir. 1996).... ...... .......... ...... .. .. 5 RULES Fed. R. Civ. Pro. 52(a) ..................................................... ................ .. ...... ... 5, 6 111 I I I I I I I I I I I I I I I I I I I STATEMENT OF AMICUS CURIAE AND SUMMARY OF THE ARGUMENT The State of Arkansas files this Amicus Curiae brief pursuant to Federal Rule of Appellate Procedure 29(a) in support of the District Court's finding that the Little Rock School District (LRSD) has achieved full unitary status. The State's interest in this proceeding arises out of its status as a party to the 1990 settlement agreement in this case, its general supervisory authority over the LRSD, the over $60 million each year the State spends in support of the desegregation efforts of the three Pulaski County school districts in this case, and the State's interest in seeing that the three Pulaski County school districts substantially comply with their desegregation plans. The Joshua Intervenors argue on appeal that the District Court's judgment finding the LRSD to have achieved unitary status should be reversed and that the LRSD should be returned to its nearly fifty years of court supervision. In support of this argument the Joshua Intervenors argue three points on appeal: 1) that the District Court erred in its fact and credibility determinations, 2) that the LRSD failed to do enough in establishing its program assessment and evaluation process, and 3) that the District Court should not have returned to the proper standard by which to measure the school district's desegregation plan compliance. I I I I I I I I I I I I I I I I I I I The Joshua Intervenors argue that the District Court erred in its factual findings. Their primary dispute on appeal with those findings is their disagreement with the District Court's credibility determinations. The Court below properly chose which witness testimony to credit. The Joshua Intervenors have failed to demonstrate that the District Court abused its wide discretion. The LRSD took many steps and spent considerable resources to ensure that a process to continually assess and evaluate its key 2.7 programs was a permanent part of its curriculum. Although, the District Court had improperly imposed the heightened \"deeply embedded\" standard on the LRSD in this area, the record amply supports a finding that the LRSD met even this heightened standard. The District Court properly acknowledged that it had changed the law on the LRSD when it required that the district's \"comprehensive program assessment process must be deeply embedded as a permanent part of LRSD's curriculum and instruction program.\" LRSD v. PCSSD, 470 F. Supp. 2d 963, 997-8 (E.D. Ark. 2004)(emphasis in original). The correct legal standard is whether the district substantially complied with its desegregation plan in good faith. This has been the standard since Brown II was decided by the Supreme Court. Brown v. Board of Education, 349 U.S. 2 I I I I I I I I I I I I I I I I I I I 294, 299, 75 S.Ct. 753, 746 (1955). This standard was also clearly laid out by the District Court in its 2002 opinion finding the LRSD unitary as to the majority of its plan obligations, LRSD v. PCSSD, et al., 237 F.Supp.2d 988, 1035-36 (E.D. Ark. 2002), and was affirmed by this Court in 2004. LRSD v. Armstrong, 359 F.3d 957 (8th Cir. 2004). In this Court's 2006 opinion, it clearly reserved judgment on the propriety of the \"deeply embedded\" requirement. LRSD v. NLRSD, 451 F .3d 528, 541 (8th Cir. 2006). Accordingly, the \"deeply embedded\" standard is not the law of this case but was a departure from the settled law of this case. Two other school districts remain as defendants in this case: the North Little Rock School District (NLRSD) and the Pulaski County Spe~ial School District (PCSSD). A holding from this Court that the \"deeply embedded\" standard was proper would destabilize the settled law of this case. It would allow the standard for plan compliance to be changed without notice to these districts, as happened with the LRSD. Accordingly, the District Court's return to the proper standard should be clearly affirmed. 3 I I I I I I I I I I I I I I I I I I I ARGUMENT Almost fifty years after the Little Rock School District's first major step in the integration of its schools, the District has achieved another milestone: a judgment from the district court granting full unitary status and complete release from court supervision. Through their appeal, the Joshua Intervenors seek to return the school district to court supervision. The State of Arkansas files this Amicus brief in support of the Little Rock School District's full unitary status. The Joshua Intervenors urge reversal of the District Court for three reasons: 1) they assert that the District Court was wrong in its factual findings because they disagree with the court's credibility determinations, 2) they believe that the School District's many efforts to embed a program evaluation process has not gone far enough, and 3) they assert that the District Court should not have analyzed district efforts using the good faith standard of substantial compliance. Because the District Court was clearly correct in each of its determinations, the judgment of the District Court should be affirmed in all respects. I. NO CLEAR ERROR IN THE COURT'S CREDIBILITY DETERMINATIONS. The Joshua Intervenors argue factual errors based on their disagreement with the District Court's credibility determinations. Most 4 I I I I I I I I I I I I I I I I I I I notably, the bulk of the testimony relied upon by the Joshua Intervenors are not factual statements but mere conclusions of certain witnesses about the effectiveness of the Little Rock School District's (LRSD's) efforts to comply with the District Court's 2004 order. \"Credibility determinations are within the exclusive domain of the district court, and are virtually unreviewable on appeal.\" United States v. McCarthy, 97 F.3d 1562, 1579 (8th Cir. 1996). A district court's factual determinations, including credibility of witnesses, are reviewed for \"clear error.\" Enterprise Rent-a-Car, Inc. v. Rent-a-Wreck of America, Inc., 181 F.3d 906, 909 (s1h Cir. 1999); Fed. R. Civ. Pro. 52(a) (\"Findings of fact ... shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses\"). The Eighth Circuit does not overturn a district court's factual findings unless it is left with the \"definite and firm conviction that a mistake has been committed.\" Little Rock School District, et al. v. Armstrong, et al., 359 F.3d 957, 963 (8th Cir. 2004). The Supreme Court has instructed that Courts of Appeal may not reverse the district court's factual findings as long as \"the district court's account of the evidence is plausible in light of the record viewed in its entirety ... even though [the circuit court may be] convinced that had it been 5 I I I I I I I I I I I I I I I I I I I sitting as the trier of fact, it would have weighed the evidence differently\" Anderson v. Beseimer City, 470 U.S. 564, 573-4, 105 S.Ct. 1504 (1985)(holding that appellate courts are bound by Fed. R. Civ: Pro. 52's clearly erroneous standard). The Joshua Intervenors point this Court to no objective basis for overturning the District Court's credibility determinations. \"[W]hen a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.\" Anderson, 470 U.S. at 575, 105 S.Ct. at 1512. The Intervenors focus primarily on the testimony of one witness, the director of the LRSD's Planning, Research, and Evaluation (PRE) Department: Dr. Karen DeJarnette. As demonstrated by the record, Dr. DeJarnette's reliability in drawing conclusions about the district's unitary status efforts was substantially undermined at the unitary status hearings. Indeed, she revealed herself to have lost objectivity in opining on this ultimate issue of the unitary status hearings. Her testimony demonstrated that she had realized the effect that judicial supervision over  2. 7 .1 assessments and evaluations had on her 6 I I I I I I I I I I I I I I I I I I I office, which was charged with carrying out these programs, and for that reason she was willing to act in support of continuing judicial supervision of the LRSD. She was shown to have shifted from an effort to comply with the court's order to an effort to gather power to her department without regard to the decisions of district administrators or the advice of the district's attorney. The District Court properly chose to discredit her testimony. The Joshua Intervenors have not shown error in the District Court's  credibility determinations. The judgment should, therefore, be affirmed. II. NO CLEAR ERROR IN THE COURT'S DETERMINATION THAT LRSD SATISFIED ITS 2.7.1 OBLIGATIONS As will be explained further in this brief, the District Court properly recognized that the requirement it imposed that the school district must show that its program for assessment and evaluation was \"deeply embedded\" in school policies, was outside the parameters set by prior court decisions and should be abandoned. Even so, the LRSD presented considerable proof that it had, in fact, \"deeply embedded\" a process for evaluating its  2.7 programs, those designed to improve the academic achievement of AfricanAmerican students, and that it was sincerely committed to that endeavor. The Joshua Intervenors only evidence to the contrary is that a \"data warehouse\" was not completed and that the LRSD was still in the process of 7 I I I I I I I I I I I I I I I I I I I developing school portfolios at the time of the hearing. These were initiatives to make the district's access to data on its students more readily accessible and better organized. However, the testimony and evidence demonstrated that the LRSD could produce accurate, reliable data on its student's academic performance without these programs. Chief among the District Court's factual findings in this regard is that the LRSD had in place a reliable process for gathering the information necessary to evaluate and assess its programs. ' LRSD maintains \"data silos\" (individual servers) in numerous departments, which contain all of the information PRE needs to prepare program assessments and evaluations. To access these data silos, PRE sends a \"radar request\" to LRSD's information technology department. Data specialists then go to the data silos and assemble the requested data. Dr. DeJamette and Mr. W ohlleb testified it usually takes two days or less for the data specialists to provide PRE with all of the requested data. Thus, even if the Data Warehouse failed to provide PRE with the data it needed, it could still prepare program assessments and evaluations using radar requests to access the data from the decentralized data silos where it is also maintained. The software concerns about perceived problems with the Data Warehouse represent a difference of opinion and preference, but the choice of Business Objects in no way indicates that LRSD has failed to comply with its obligations. LRSD v. PCSSD, et al., 2007 WL 624054 * 17 ,r 23 (E.D.AR. Feb. 23, 2007)( emphasis in original). The Joshua Intervenors do not dispute this finding. Appellant's Brief p. 1. Accordingly, the undisputed factual evidence demonstrates that the LRSD has and continues to have ready 8 I I I I I I I I I I I I I I I I I I I access to accurate, reliable data with which to assess and evaluate its  2. 7 programs. This was the same system used to provide data to Drs. Steven Ross and James S. Catterall for their  2.7 program evaluations. These experts vouched for the reliability of the data provided from this system in strong terms: \"All six of these evaluations were 'good evaluations.\"' Id. at *19 ,rs. \"Dr. Ross testified that PRE provided him with all of the data he needed to prepare .t hese six evaluations of 2.7 programs.\" Id. at *20 if6. \"Dr. Ross and Dr. Catterall both testified that PRE provided them with all of the support and assistance they needed to prepare the eight evaluations.\" Id. at *21 ,r 2. Dr. Catterall \"stated that the data he received from LRSD was better than the data he received from most school districts.\" Id. at *20 if7. The evidence presented at the unitary status hearings showed that the district's efforts to create a data warehouse, Id. at *16 ifl9, and school portfolios, Id. at * 15, if 13, were additional efforts that went well beyond what was required by the LRSD's desegregation plan and the District Court's 2002 and 2004 compliance remedies. Accordingly, the District Court properly concluded: In short, there is nothing in the 2004 Compliance Remedy or Regulation IL-R which obligates LRSD to create a Data Warehouse or School Portfolios or to accomplish those two objectives before the comprehensive program assessment 9 I I I I I I I I I I I I I I I I I I I process could be deemed to be \"deeply embedded.\" Clearly, LRSD administrators voluntarily decided to create a Data Warehouse and School Portfolios, in part, to make it easier for PRE to have access to the data it needed to perform assessments and evaluations. Id. at * 17 ,I 24. The LRSD presented sufficient evidence that it had implemented a process of assessment and evaluation that satisfied the District Court's now (properly) abandoned \"deeply embedded\" requirement. If there was any doubt, it was erased by the evidence of the district's moving beyond its then existing data mining capabilities to the great expense it went to in developing a data warehouse and school portfolios to facilitate the process of program assessment and evaluation. Accordingly, the District Court determined that even though the \"deeply embedded\" standard should be abandoned, nevertheless the LRSD had satisfied that standard and had left no doubt that its  2. 7 program assessment and evaluation process met the requirements of the district's plan. III. GOOD FAITH COMPLIANCE WITH DESEGREGATION OBLIGATIONS IS THE LAW OF THIS CASE, NOT \"DEEPLY EMBEDDED\" COMPLIANCE The law of the case doctrine provides that a court's decision on a rule of law should continue to govern the same issues in subsequent decisions in that case. First Union Nat. Bank v. Pictet Overseas Trust Corp. , Ltd., 477 10 I I I I I I I I I I I I I I I I I I I F.3d 616 (8th Cir. 2007). It is an \"amorphous\" concept that directs the court's discretion, but \"does not limit the tribunal's power.\" Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391 (1983). The doctrine does not apply to interlocutory orders, which can always be reconsidered and modified by the district court prior to entry of a final order. United States v. Hively, 437 F.3d 752 (8th Cir. 2006). As to appellate decisions, the law of the case \"ordinarily\" requires a district court to follow an appellate decision with re~pect to all issues directly decided by that opinion. United States v. Manfre, 456 F.3d 871, 874 (8th Cir. 2006). Of course, a district court is not bound as to legal issues not addressed by an opinion of an appellate court. Id. Even where an appellate court has addressed an issue, however, the district court may still reconsider and modify the decision on that issue. \"Under law of the case doctrine, as now most commonly understood, it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice.\" Arizona, 460 U.S. at 619 fn. 8, 103 S.Ct. at 1391 fn. 8. Indeed, this Court has acknowledged that even where it has decided an issue of law, a district court is not prevented from revisiting the issue if the Eighth Circuit's decision was \"clearly erroneous and worked a manifest injustice.\" Manfre, 456 F.3d at 874. 11 I I I I I I I I I I I I I I I I I I I Here, the District Court's insertion of a \"deeply embedded\" requirement into the case in 2004 was a departure from the settled law in desegregation cases. Since Brown II, the Supreme Court has held that a school district should be released from federal court supervision if \"the action of school authorities constitutes good faith implementation of the governing constitutional principles.\" Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 746 (1955)(emphasis added). In Green v. County School Board, of New Kent County, the Court again affirmed that a school district's obligation of compliance was \"to be acting in good faith.\" 391 U.S. 430, 439, 88 S.Ct. 1689, 1695 (1968). Twenty-three years later in a case on desegregation remedy, the Supreme Court again stated that a school district's compliance with its desegregation obligations must be weighed with a view to the \"good faith of the school board in complying with the decree.\" Board of Education v. Dowell, 498 U.S. 237, 249, 111 S.Ct. 630, 637-8 (1991). In Dowell, the Court rejected a request that a higher standard (not unlike the \"deeply embedded\" standard at issue here) be applied to a school district and held that the principles supporting a federal court's displacement of a school board's authority did not \"require any such Draconian result.\" Id. On the contrary, the Court instructed that \"[t]he District Court should 12 I I I I I I I I I I I I I I I I I I I address itself to whether the Board ha[ s] complied in good faith with the desegregation decree.\" Id. at 249-50, 111 S.Ct. at 638 (emphasis added). Similarly, in Freeman v. Pitts the Court rejected the assertion that a school district had to engage in \"heroic measures\" to demonstrate compliance with a desegregation plan. 503 U.S. 467, 493, 112 S.Ct. 1430, 1447 (1991). Instead, the Court emphasized that the school district was simply required to demonstrate its good faith commitment to the principles of desegregation. Id. This case has consistently followed the good faith standard enunciated by the Supreme Court. In 2002, when the District Court ruled that LRSD was unitary as to the majority of its desegregation obligations, the court went to great length to analyze the proper standard by which to judge the LRSD's compliance efforts. LRSD v. PCSSD, et al., 237 F.Supp.2d 988 (E.D. Ark. 2002). The result of that analysis was the court's conclusion that the proper standard was \"substantial compliance.\" Id. at 1032-33. It went on to give a focused definition of that term as it would apply to the case. Id. at 1035-36. The court held: I am required to examine whether any of LRSD's failures to comply with the Revised Plan in the six challenged areas are \"serious enough\": ( 1) to constitute \"substantial noncompliance\"; and (2) \"to cast doubt\" on LRSD's \"future compliance with the constitution.\" 13 I I I I I I I I I I I I I I I I I I I Id. It was this standard that the court went on to apply in holding that the LRSD was unitary as to all aspects of its desegregation plan, save one:  2.7.1. This Court adopted this standard and used it in reviewing the District Court's 2002 unitary status ruling. LRSD v. Armstrong, 359 F.3d 957 (8th Cir. 2004). Each section of that opinion analyzing the District Court's unitary holdings concludes with the statement that \"we find no clear error in the District Court's finding of substantial compliance.\" Id. It does not ' appear from this Court's 2004 opinion that the question of what standard applied to the LRSD's conduct was seriously doubted. To the extent that a different standard may have been urged, that request was rejected. See Id. at 965. Not quite two months after this Court handed down its March 2, 2004, opinion, the District Court issued the Memorandum Opinion at issue here regarding the LRSD' s efforts to substantially comply with  2. 7 .1 of its desegregation plan. LRSD v. PCSSD, 470 F. Supp. 2d 963 (E.D. Ark. 2004). The District Court acknowledged the effect of this Court's March 2, 2004, opinion: \"Thus, all aspects of the September 13[, 2002,] Decision are now final and law of the case.\" Id. at 965. Accordingly, the \"substantial compliance\" standard laid down in 2002 became the law of the case. 14 I I I I I I I I I I I I I I I I I I I Moreover, the District Court acknowledged that \"[i]t is black letter law that a school district seeking an end to court supervision has the burden of proving substantial compliance with the judicially imposed remedy.\" Id. at 984 ( emphasis added). Despite the District Court's recognition of the proper standard, it departed from that standard in one aspect of its 2004 memorandum opinion. The court held that the LRSD's \"comprehensive process for assessing  2.7 programs must become a deeply embedded part of LRSD's elementary and ' secondary curriculum.\" Id. at 985, 997. The court's desire to see that programs designed to improve the academic performance of AfricanAmerican children in the LRSD continue to be assessed and evaluated for effectiveness is certainly laudable and should be commended. LRSD, 2007 WL 624054 *7-8 fu. 43, 47. However, as the court recognized, that desire is not a basis to change the rule of law applicable to this case. As the District Court explained in its 2004 opinion, the law in this area, and in this case, did not require the LRSD to engage in heroic efforts to demonstrate its good faith; it required substantial compliance in good faith with the LRSD's desegregation plan. On appeal from the 2004 District Court decision, the majority opinion of this Court did not directly address the \"deeply embedded\" standard. 15 I I I I I I I I I I I I I I I I I I I LRSD v. NLRSD, 451 F.3d 528 (8th Cir. 2006). Instead the majority stated \"that had the question of compliance been submitted to us in the first instance, we might well have found that LRSD had met its burden of proof, all the more so in light of the heightened requirements imposed by the district court in its 2002 order.\" Id. at 540-41. The majority then made clear that its affirmance of the \"even more heightened requirements\" of the 2004 compliance remedy was based on the LRSD's ongoing efforts to comply with that remedy. Id. The question of. the propriety of these requirements was specifically reserved for another day: \"Suffice it to say that there will be time enough for us to revisit the requirements of the 2004 order if this case should once again come before us.\" Id. at 541. This precatory language certainly falls short of this Court having decided to depart from the good faith, substantial compliance standard and to adopt the \"deeply embedded\" standard. To hold that LRSD was required to satisfy the subjective \"deeply embedded\" requirement would drastically alter the law governing the future progress of this case. As this Court is aware, two more school districts remain under the supervision of the District Court in this case. Recognition and affirmance of the good faith standard of substantial compliance with a 16 I I I I I I I I I I 1 I I I I I I I I desegregation plan by this Court would ensure that no such departures from the long standing law would be imposed upon these two remaining districts. The 2006 affirmance of the District Court's 2004 compliance remedy was clearly premised on the time that had passed and the then ongoing efforts of the LRSD in complying with the 2004 remedy. If this Court were now to approve the 2004 departure from the long-standing law of this case, it would allow the District Court to alter the standards for compliance applicable to the two remaining districts. without prior notice to those districts and the opportunity to conform their actions to the newly announced expectations of the court as opposed to the settled law. The Joshua Intervenor's request that this Court sanction this shifting sands approach to this half-century old litigation should be soundly rejected. The State of Arkansas requests that the District Court's return to the settled law of this case be affirmed for the benefit of the future litigation of the unitary status of the two remaining districts. CONCLUSION For the foregoing reasons, the State of Arkansas, as Amicus Curiae, requests that this Court affirm the District Court's grant of complete unitary status to the Little Rock School District in its entirety. 17 I I Respectfully submitted, DUSTIN McDANIEL I Attorney General I By: /4-~ I Scott P. Richardson, Ark. Bar # 2001208 MatthewB.McCoy, Ark. Bar#2001165 I Assistant Attorneys General 323 Center Street, Ste 200 Little Rock, AR 72201 I (501) 682-1019 (501) 682-2591 fax scott.richardson@arkansasag.gov I ' Dennis R. Hansen I Deputy Attorney General Attorneys for Amicus Curiae the State of I Arkansas. I I I I I I I I I 18 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief and one virus free diskette containing a copy of the brief have been served on the following via regular U.S. Mail, postage prepaid, on this z~:ttay of November, 2007: Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. Robert Pressman 22 Locust A venue Lexington, MA 024 21 Mr. John W. Walker John W. Walker, P.A. 1 723 Broadway Little Rock, AR 72206 Hon. Andree Roaf Office of Desegregation Monitoring 124 W. Capitol, Suite 1895 Little Rock, AR 72201 /4--~ Scott P. Richardson 19 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF COMPLIANCE I certify that the applicable parts of this brief comply with typevolume limitation of Federal Rule of Appellate Procedure 32(a)(7). The Brief contains 3,797 words and 355 lines of text. Pursuant to Local Rule 28A, Appellees hereby submit a 3 \" computer diskette to the Clerk and counsel for the principal parties. The brief was prepared in Microsoft Office Word 2003 using the proportionally spaced typeface Times New Roman in font size fourteen point. I, Scott P. Richardson, hereby certify that the diskettes presented to the Clerk and Appellant's counsel have been scanned for viruses and are virus free. Scott P. Richardson 20 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, December 07, 2007 4:35 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Notice (Other) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the :filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 12/7/2007 at 4:34 PM CST and filed on 12/7/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Office of Desegregation Monitor WARNING: CASE CLOSED on 01/26/1998 Document N um be_!: 4171 (No document attached) Docket Text: NOTICE of Filing 2007-2008 Enrollment and Racial Composition of the PCSSD by Office of Desegregation Monitor (available in paper format only) (dac) 4:82-cv-866 Notice has been electronically mailed to: H. William Allen (Terminated) hwallen@allenlawfirrnpc.com, njjackson@allenlawfirmpc.com Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Stephen L. Curry (Terminated) scurry@aristotle.net John T. Lavey (Terminated) jlavey@laveyandburnett.com, jsmith@laveyandburnett.com - Philip K. Lyon (Terminated) pklyon@jljnash.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net 12/10/2007 M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Richard W. Roachell (Terminated) rroachell@aol.com, schoollaw@msn.com William H. Trice, III (Terminated) btrice@hfc-law.com Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com Sharon Carden Streett (Terminated) scstreett@comcast.net John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Will Bond (Terminated) will@mcmathlaw.com, tasha@mcmathlaw.com Mark Arnold Hagemeier (Terminated) mhagemeier@uasys.edu, tsmith@uasys.edu Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 12/10/2007 ARKANSAS DEPARTMENT OF Dr. T. Kenneth James, Commissioner Educatilfn 4 State Capitol Mall  Little Rock, AR 72201-1071 (501) 682-4475 http://ArkansasEd.org December 20, 2007 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 \"ECEJVED DEC 2 o 2in Office of Desegregation Monitoring vlll One Union National ~,., .. _ OFFICE OF 124 West Capitol, Suh,t!~ATION MONITOR/ Little Rock, AR 72201 NG Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones III Mitchell, Williams, Selig, Gates \u0026amp; Woodyard 425 West Capitol Avenue, Suite 1800 Little Rock, AR 72201 RE: Little Rock School District v. Pulaski County Special School District, et al. US. District Court No. 4:82-CV-866 WRW Dear Gentlemen: 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 December 2007 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: Scott Richardson, Attorney General's Office STATE BOARD OF EDUCATION: Chair: Diane Tatum, Pine Bluff  Vice Chair: Randy Lawson, Bentonville Members: Sherry Burrow, Jonesboro  Jim Cooper, Melbourne Dr. Calvin King, Marianna  Dr. Tim Knight, Arkadelphia  Dr. Ben Mays, Clinton MaryJane Rebick, Little Rock  Dr. Naccaman Williams, Springdale An Equal Opportunity Employer UNITED STATES DISTRICT cc\u0026amp;~CEIVED EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION DEC 2 0 2007 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. LR-C-82-866 WRW 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 AD E's Project Management Tool for December 2007. Respectfully Submitted, 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 December I Cy-f--_-1:,)007, 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. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes Wagoner, Ivers \u0026amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Office of Desegregation Monitoring One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones, III Mitchell, Williams, Selig, Gates \u0026amp; Woodyard 425 West Capitol, Suite 1800 Little Rock, AR 72201 Page 1 of 3 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, December 19, 2007 3:12 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Notice (Other) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 12/19/2007 at 3:12 PM CST and filed on 12/19/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4172 Docket Text: NOTICE Of Filing the ADE's Project Management Tool for December 2007 by Arkansas Department of Education (dac) 4:82-cv-866 Notice has been electronically mailed to: H. William Allen (Terminated) hwallen@allenlawfirmpc.com, njjackson@allenlawfirmpc.com Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Stephen L. Curry (Terminated) scurry@aristotle.net John T. Lavey (Terminated) jlavey@laveyandburnett.com, jsrnith@laveyandburnett.com Philip K. Lyon (Terminated) pklyon@jljnash.com Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net 2/5/2008 M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Richard W. Roachell (Terminated) rroachell@aol.com, schoollaw@msn.com William H. Trice, III (Terminated) btrice@hfc-law.com Page 2 of3 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com Sharon Carden Streett (Terminated) scstreett@comcast.net John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Will Bond (Terminated) will@mcmathlaw.com, tasha@mcmathlaw.com Mark Arnold Hagemeier (Terminated) mhagemeier@uasys.edu, tsmith@uasys.edu Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcec:fStamp_ID=1095794525 [Date=12/19/2007] [FileNumber=l061501- 2/5/2008 0] [b95ad922a60bf757b40e2d3b8d210b19d9b11916044018f5bed3923038f3651d56 490c805980ba10dd76aafe7662051e96104aeecb06bd6203db604e359ff052]] 2/5/2008 Page 3 of3 Page 1 of3 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, December 19, 2007 3:12 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Notice (Other) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. Notice of Electronic Filing U.S. District Court Eastern District of Arkansas The following transaction was entered on 12/19/2007 at 3:12 PM CST and filed on 12/19/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4172 Docket Text: NOTICE Of Filing the ADE's Project Management Tool for December 2007 by Arkansas Department of Education (dac) 4:82-cv-866 Notice has been electronically mailed to: H. William Allen (Terminated) hwallen@allenlawfirmpc.com, njjackson@allenlawfirmpc.com Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Stephen L. Curry (Terminated) scurry@aristotle.net John T. Lavey (Terminated) jlavey@laveyandburnett.com, jsmith@laveyandburnett.com Philip K. Lyon (Terminated) pklyon@jljnash.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net 2/12/2008 M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Richard W. Roachell (Terminated) rroachell@aol.com, schoollaw@msn.com William H. Trice, III (Terminated) btrice@hfc-law.com Page 2 of3 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com Sharon Carden Streett (Terminated) scstreett@comcast.net John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Will Bond (Terminated) will@mcmathlaw.com, tasha@mcmathlaw.com Mark Arnold Hagemeier (Terminated) rnhagemeier@uasys.edu, tsmith@uasys.edu Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=12/19/2007] [FileNumber=l061501- 2/12/2008 0] [b95ad922a60bf757b40e2d3b8d210b19d9b11916044018f5bed3923038f3651d56 490c805980ba10dd76aafe7662051e96104aeecb06bd6203db604e359ff052]] 2/12/2008 Page 3 of 3 I I I I I I I I I I I I I 1 I I I I I 07-1866 IN THE UNITED STATES COURT OF APPEALS  FOR THE EIGHTH CIRCUIT MRS. LORENE JOSHUA, ET Absc INTERVENOR/APPELLANTP 1 civc 0 v. DEc 2 o 2001 DESEG11/jf!lct OF ,7DN /,f O,JJ LITTLE ROCK SCHOOL DISTRICT ,;JTORJN(J APPELLEE Reply Brief of Mrs. Lorene Joshua, Et Al. On Appeal From United States District Court Eastern District of Arkansas Western Division Hon. William R. Wilson District Judge Presiding Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (F) .I I .I, I I I I 'I I I I I I 1 I I I I Table of Contents Table of Contents ............ .. ..... .... ... .. ...... ...... ........................ .... .. ......... . Table of Authorities .......... .................... ... ........ ....... .... ... .. ... ............... . Argu1nent            oooo    \"                oo  OO    OO         \" The Arguments of the LRSD and the State Lack Merit A. The Original Section 2. 7 .1 Commitment Encompassed Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD B. The LRSD's Freedom to Craft an Implementation Plan During the Agreed Upon Duration of the Revised Plan C. This Court's Identification of the District Court's Remedial Authority D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default E. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default F. The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the Hearing Requires Reversal Certificate of Service ... .... ............ ... ..... ......... ..... .... ..... ... .. ... ........ .... .. .... . Certificate of Compliance ... .... ........ ....... ...... ......... ... .... ............ ... ....... ... . Attachments i 11 1 1 3 3 4 6 9 12 14 I I ,, I ,, I I .I I I I , , I I I I 1 I I Table of Authorities Black v. Lane, 22 FJd 1395 (7thCir. 1994) Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991) First Union National Bank, Tmstee v. Pictet Overseas Tmst Corp., 477 F.3d 616 (8thCir. 2007) Goss v. Lopez, 419 U.s. 565 (1975) Grand State Marketing Co. v. Eastern Poultry Distributors, 975 S.W.2d 429 (Ark.App. 1998) Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610 (1976) Knight v. PCSSD, 112 F.3d 953 (8thCir. 1997) LRSD v. PCSSD, 921 F.2d 1371 (8thCir. 1990) LRSD v. PCSSD, 83 F.3d 1013 (8thCir. 1996) LRSD v. PCSSD, 237 F.Supp.2d 988 (E.D.Ark. 2002) LRSD v. PCSSD, 470 F.Supp.2d 963 (E.D.Ark. 2004) LRSD v. PCSSD, 451 F.3d 528 (8thCir. 2006) LRSD v. PCSSD, Order Declaring the Little Rock School District Unitary, Feb. 23, 2007 McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (1 stCir. 1980) Ramos-Falcon v. Autoridad de Energia Electrica, 301 FJd 1 (1 stCir. 2002) Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) United States v. ITT Continental Baking Company. 420 U.S. 233 (1975) ii 10, 11 10, 12 10 2 10 4,9 3,4 8 2,4,6 6, 7, 11, 12 1, 6, 9 2, 12 9, 11 4 2 I I I I I I I I ,, I I I I I I I I I I Rule 55, Federal Rules of Civil Procedure Restatement (Second) of Contracts, Sec. 201(1) (1981) iii 10 2 I I I ., , I I I I I I I I I I I I I I I The Arguments of the LRSD and the State Lack Merit LRSD and the State ignore the breadth, in context, of LRSD's original commitment in Section 2. 7 .1 ; LRSD's agreement necessarily required multiple actions creating a structure for implementation fairly characterized by the \"deeply embedded\" language later employed by the District Court, after LRSD twice failed to fulfill its voluntary commitments. They do not account for these defaults, or the District Court's remedial authority in such circumstances. They minimize, or ignore entirely the District Court's communicating an important change in the criteria for judging LRSD compliance only in its February 23, 2007 post-hearing opinion, thereby denying Joshua counsel the opportunity to challenge LRSD compliance with knowledge of all governing standards. A. The Original Section 2. 7 .1 Commitment Encompassed a Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD In 1998, the District Court approved the Revised Desegregation and Education Plan (Revised Plan), to which the Joshua Intervenors and the LRSD had agreed. LRSD, 451 F.3d at 3. Section 2.7.1 provided that: LRSD shall assess the academic programs implemented pursuant to Section 2.7 after each year in order to detennine 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 fonn of either modifying how the program is implemented or replacing the program. While only 65 words and 2 sentences, this was a commitment of considerable breadth. First. The text referred to annual reviews of the specified programs in terms of 1 I I I I I I I I 'I I I I I I I I I I I their effectiveness in improving African-American student achievement.1 The text also obligated the LRSD to modify or replace programs shown to be ineffective. Second. The programs, identified in Sec. 2.7 of the Revised Plan, were those \"designed to improve and re.mediate the academic achievement of African American students . .. . \" The LRSD \"identified almost 100 [such] programs . . .. \" LRSD, 237 F.Supp. at 1076, n. 135. Third. The parties interpreted \"assess\" and \"assessment\" to require evaluations, a more detailed study than an assessment, of at least the key Section 2.7 programs. 237 F.Supp. at 1076-80; LRSD (dist. ct.), 2-23-07, at 13-15 .2 The mere agreement to and approval of these two sentences was obviously not the goal of the parties. The objective meaning of these words, in the context of a school district of substantial size, contemplated a great deal of activity by its officers and employees. There would be a need, inter alia, for the adoption of policies and guidelines; the employment of persom1el capable of perfonning assessments and evaluations; interaction with those involved in the content of LRSD curriculum; communication with and training of school-level personnel; reports on implementation to high level administrators and the school board; oversight; and docmnents containing 1 In 1997-98, the LRSD enrolled 24,886 students, 16,664 of whom were African Americans; LRSD then operated 50 schools. [ODM enrollment report, Dec. 7, 2007] 2 As the district court notes [LRSD, 2-7-07, at 2, 15] RESTATEMENT (SECOND) OF CONTRACTS Sec. 201(1) (1981) provides: \"Where the parties have attached the same meaning to a promise or agreement or a tenn thereof, it is interpreted in accordance with that meaning.\"; see also U.S. v. ITT Continental Baking Co., 420 U.S. 233, 238 (1975) (reliance on \"any technical meaning words used may have had to the parties\"); Grand State Marketing v. Eastern Poultry Distribs., 975 S.W.2d 429, 442 (Ark.App. 1998) (\"In particular, when a technical term is used, the trier of fact may detennine in what sense the term was used.\") 2 I I I I ., I I I I I I I I I I I I I l1 completed program studies. Not infrequently, a phrase is used to describe an endeavor of considerable complexity. Here, a reasonable constmction of the parties' broa,d voluntary agreement was that it contemplated, over time, multiple, mature actions at different levels and locales in the LRSD, i.e., that a stmcture to carry out the parties' broad agreement be \"deeply embedded\" in the LRSD curriculum and instmction program. B. The LRSD's Freedom to Craft an Implementation Plan During the Agreed Upon Duration of the Revised Plan Section 11 of the Revised Plan provided for implementation for a three-year period, assuming substantial compliance with its tenns. In this period, the system's implementation of Section 2. 7 .1 was not constrained by any directive( s) of the District Court. The LRSD was free to fashion and implement steps to comply with the parties' agreement. C. This Court's Identification of the District Court's Remedial Authority Prior to the approval of the Revised Plan, this court addressed in this case the implementation and enforcement of agreements of the parties. The appeal in LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990) followed the parties' agreement to a desegregation plan for each of the three districts involved in the case, as well as an \"Interdistrict Desegregation Plan\" and a\" Settlement Agreement\" concerning obligations of State officials. 921 F .2d at 13 78-80. Rejecting mlings of the District Court, this court approved the parties' plans. The court noted that \"the parties have all agreed to continued monitoring\" and continued [at 1386]: It is important for the settlement plans to be scmpulously adhered to -- and here 3 I I I I I I. I I I I I I, I I I I I I ( I I we have in mind especially the kinds of programs that the plan contemplates for the Incentive Schools -- and it will be the job of the District Court to see that the monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments. This court also addressed the District Court's authority in the concluding section of its 1990 opinion, which summarized this court's mlings and directives. This court wrote: 8. The District Court is instructed to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require. See also Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 378 (1992) (\"A  consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the mies generally applicable to otl1er judgments and decrees.\"); Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997) (parties' agreement \"becomes, 111 a sense, a particularization of federal law applicable to these parties\"). D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default In 2002, following hearings, the District Court mled on the LRSD's effort to show compliance with the Revised Plan sufficient to achieve full unitary status and the termination of court jurisdiction. The court clustered the Plan provisions at issue in six areas. LRSD, 237 F.Supp. at 1086. In all areas but one, implementation of Plan provision 2. 7 .1 , the court found substantial compliance and ended court supervision. 237 F.Supp. at 1086, 1089. 4 I. I I I I I I .,I I I I I I I I I I I, As to 2. 7 .1 , the court found an absence of substantial compliance. Id. The District Court's discussion, 237 F.Supp. at 1076-80, may be swmnarized as follows: [i] LRSD interpreted Sec. 2. 7 .1 consistently to obligate the district to prepare program evaluations of the key 2.7 programs, which by the text of that section were not limited to the programs in Plan Section 5. [At 1076-80) [ii] The school board adopted an evaluation policy belatedly, i.e., in February 2001 , only in the month before LRSD filed its Compliance Report ( at the time specified in the 1998 Revised Plan), seeking a complete release from court supervision. [At 1078, para. 7) [iii] LRSD lacked the personnel needed to prepare adequate evaluations. [At 1081, 5-16-01 E-mail] [iv] LRSD's March 2001 Compliance Report was marked by a lack of candor, exaggerating the extent of completion of evaluations; none were complete. [At 1079-80, para. 14) [ v] In view of its earlier consistent position that Sec. 2. 7 .1 required the preparation of  evaluations of key 2.7 programs, LRSD's contrary position in the hearing also evidenced a lack of candor. [At 1078, para. 10) Faced with an absence of the evaluations which LRSD had agreed to be necessary and evidence of bad faith, the District Court did not simply plead with LRSD to comply. Rather, in keeping with this court's instructions in 1990, the Court devised a \"Compliance Remedy.\" This remedy required LRSD, among other things, to [237 F.Supp. at 1087-88): [i] establish \"a program assessment procedure ... that can accurately measure the effectiveness of each program implemented under Sec. 2.7 in improving the academic achievement of African-American students\"; [ii] prepare and use certain \"program evaluations\" which it had identified; [iii] continue during a 5 I I I I I I I I I 1. I I I I I I I I I specified period to assess each 2.7 program and use this and other available infonnation in deciding on program modification and elimination; [iv] maintain certain written records regarding these assessments, including records regarding program modification and elimination, a topic specifically addressed in Sec. 2. 7 .1; and [iv] use a particular external expert or someone else with equivalent qualifications to prepare the evaluations, which the LRSD had referenced. There is no proper basis for criticism of the District Court regarding the 2002 remedy. Faced with LRSD default, the court extended the implementation period and identified actions inherent in the parties' 2. 7 .1 agreement, as constrned by the parties. The District Court fulfilled the responsibility identified in strong tenns by this court in 1990, in order to give Joshua Intervenors the benefit of the parties' . bargain. Importantly, the LRSD neither sought clarification of the meaning of this remedy, nor appealed. LRSD, 470 F.Supp. at 969; LRSD, 451 F.3d at 536. E. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default In 2004, the LRSD sought a tennination of court supervision based upon asserted compliance with the court's 2002 remedy and Sec. 2. 7. i. The District Court again found a lack of substantial compliance. Faced with a second instance of noncompliance, the court set forth the second Compliance Remedy, which was, intentionally, more specific than the 2002 remedy. LRSD, 470 F.Supp. at 997. The factors on which the court relied in finding non-compliance and framing its 2004 remedy included the following: [i] the LRSD had again recognized that its obligation encompassed some program evaluations; [470 F.Supp. at 970-71]; [ii] 6 I I, I I I I I I I I I I I I I I I I I although, as LRSD's expert witness .testified, all districts implement sub-programs within a curriculum, which can be and should be evaluated [Dr. Ross, hearmg transcript at 195; 470 F.Supp. at 986], the \"evaluations\" which the LRSD presented were global overviews of the entire literacy and math-science curricula, not studies of particular programs which could be used to make the requisite decisions about program modification and elimination [470 F.Supp. at 971-72, 987, 990]; [iii] neither global overview addressed the key research question  identified in LRSD's assessment\\evaluation policy, i.e., \"has this curriculum/instmction program been effective in improving and remediating the academic achievement of African-American students?\" [470 F.Supp. at 987, 990]; [iv] LRSD did not maintain the records regarding its program studies required in paragraph B of the 2002 Compliance Remedy [ 4 70 F.Supp. at 994-95]; [v] the shortcomings inLRSD perfonnance were again attributable to staffing problems in the district [470 F.Supp. at 985-86]; [vi] in the opinion of the LRSD expert, Dr. Ross, a system the size of the LRSD could be expected to provide four or five evaluations a year [470 F.Supp. 994]; [vii] LRSD had failed to provide to ODM and Joshua Intervenors promised progress reports on the literacy and mathscience evaluations [470 F.Supp. at 988-89, 991]. There is no proper basis for criticism of the District Court regarding the 2004 remedy. Faced with a second LRSD default, the court addressed more specifically required actions and steps to achieve them. No goal, required action, or standard was outside the parties' broad agreement. Except when it came to court, LRSD always identified its obligations as including some evaluations. When LRSD had twice failed 7 I I I I I I I I I I I I I I I I I I I in this area, the court drew upon the testimony of LRSD's expert to identify the number of evaluations to require in its second remedy. LRSD having twice failed with regard to adequate personnel, the court was specific with regard to both in-house staff (PRE) and external experts (to do evaluations). The court's deeply embedded language was not a requirement untethered to the original 2. 7 .1 c01mnitment, or fairly characterized as made up out of whole cloth, but instead a provision fairly descriptive of the LRSD landscape in a full compliance with Section 2. 7 .1 setting. Had LRSD complied at the outset, or after entry of the first compliance remedy, the District Court would not have had the need to articulate a global standard, geared to the particular subject matter of Sec. 2.7 .1, to help measure compliance. The District Court could not allow itself to be \"nm off\" It could not condone non-compliance. It had a responsibility, which its second remedy sought to address. To the extent relevant on this appeal, it should be noted that no. part of the argument made by the dissenting judge in this court's 2006 decision withstands scrutiny. See 451 F.3d at 541-43 . First. The interpretation of the word \"assessment\" and the identification of the type of program studies required overall by Sec. 2.7 .1 ignores two critical factors. These are LRSD's repetitive construction of its bargain as requiring some evaluations and the relevance of the parties' position on this to proper interpretation of Sec. 2.7 .1. See n.2, supra.3 3 Factual findings bearing upon contract interpretation are reviewed for clear error. LRSD v. PCSSD, 83 F.3d 1013, 1017 (8thCir. 1996). Given the volume of evidence relied upon, the lower court's findings that Sec. 2. 7 .1 encompassed evaluations are unassailable. 8 I I I I I I I I I I I I I I I I I I I Second. Having qualified personnel was an inherent element of the original 2. 7 .1 bargain; and the District Court dealt specifically with this topic only after a second default, each encompassing personnel deficiencies, as previously shown. Third. The \"deeply embedded\" standard, invoked only after two defaul~s, comes straight from the broad 2. 7 .1 bargain, by \"reasonable implication, \"4 as previously shown. A focus on the status and completeness of the identified actions for achieving compliance with Sec. 2.7.1 is more (not less) objective than application of the \"good faith\" standard ultimately employed. The State expresses concern about the impact of the \"deeply embedded\" concept on the two other Pulaski County school districts. [State brief at 16-17] No factual basis for this concern is shown. The State shows no order employing this standard regarding these systems (Pulaski County and North Little Rock). The State does not relate its concern to any particular remaining remedial provision in one of these districts. Beyond this, tl1e State does not recognize that the standard is a part of LRSD's voluntary substantive obligation drawn from Sec. 2. 7 .1. and invoked by tl1e District Court only after a second LRSD default. F. The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the Hearing Requires Reversal Prior notice, including of governing standards, is a fundamental and required element of fairness in many contexts. See [A] Ramos-Falcon v. Autoridad de Energia . Electrica, 301 F.3d 1 (1st Cir. 2002) (district court entered default judgment on ADA 4 Knight V. PCSSD, 11,2 F.3d 953, 954 (8th Cir. 1997). 9 I I I I I I I I I I I I I I I I I I I claim, but after hearing conducted pursuant to Rule 5 5 (b )(2 ), F ed.R. Ci v .Pro., dismissed claim on the merits; while the district court could conduct a hearing \"to 'establish the trnth of any avennent' in the complaint,\" it could only do so if it \"had made 'its requirements known in advance to the plaintiff, so that [he] could understand the direction of the proceeding and marshall such evidence as might be available to [him] .' Id. (quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 229 (lstCir. 1980).\"; [B] Black v. Lane, 22 F.3d 1395, 1398 (7thCir. 1994) (opinion written by Circuit Judge Lay, sitting by designation) (same); [C] First Union National Bank v. Pictet Overseas Tmst, 477 F.3d 616, 621 (8thCir. 2007) (discussing possible applicability oflaw of the case doctrine; \"Even had the district court intended to resolve the fiduciary duty issue in its Interest Rate Decision, it failed to do so with sufficient directness and clarity to establish the settled expectations of the parties necessary for the subsequent application of the law of the case doctrine.\"); [D] Goss v. Lopez, 419 U.S. 565, 581-82 (1975) (in context of school suspension for disciplinary reason, required element of affording procedural due process rights is that \"the student [must] first be told what he is accused of doing and what tl1e basis of the accusation is\"; this affords student \"opportunity to present his side of the story\" in an infonned manner); [E] Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 620 (1976) ( whether as to law or rule persons \"of common intelligence must necessarily guess at its meaning and differ as to its application\"); [F] Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237, 246 (1991) (\"[A] school board is entitled to a rather precise statement of its obligations under a desegregation decree.\"). 10 I I I I I I I I I I I I I I I I I I I The District Court departed from this basic standard of fairness. In Part K of the 2004 Compliance Remedy, the District Court identified LRSD's \"obligations under Sec. 2. 7 .1 as specified in the Compliance Remedy [ of 2004]\" as the measuring rod for assessing the district's right to a tennination of court jurisdiction. [470 F.Supp. at 1000] That remedy, in Part B, included the \"deeply embedded\" language, which even referred to \"[p ]art ofLRSD's proof, at the next compliance hearing . . .. \" [4 70 F.Supp. at 998] The District Court gave notice of changing this standard only in its post-hearing opinion. [LRSD, 2-7-07, at 16-17] Obviously, Joshua counsel could not, on a key point, \"understand the direction of the proceeding and marshall such evidence as might be available to [them]\" [Ramos-Falcon and Black, supra], when the change to the \"good faith\" standard was set forth only after the evidentiary hearing was completed. Moreover, imanagement orders\" and guidance to counsel before the hearing magnified the hann. By letter of December 6, 2006, the District Court required each side to present by December 8 for each witness \"a fair and accurate summary of the expected testimony . . . and the length of time you estimate for direct examination.\" In a letter of January 18, 2007, the court stated that each side would be limited to 7 hours for its direct case and 2 hours for cross-examination. The court added: \"Crossexamination must be brisk and to the point, i.e. , a Blitzkrieg, not an invasion of Normandy.\" [See attachments to this brief] In this setting, Joshua counsel had to focus with great care on the existing compliance standards. LRSD argues that Intervenors should have perceived the change in standards. [LRSD brief at 37-38] Neither the Court of Appeals, nor the District Court before the 11 I I I I I I I I I I I I I I I I I I I 2006 hearing or its decision, identified the good faith standard ultimately used by the lower court. Whether one refers to the law of the case or the criteria for assessing compliance, the standard actually used was not timely identified with \"sufficient directness and clarity . . .. \" First Union National Bank, 477 F.3d at 621. Moreover, LRSD does not recognize that the deeply embedded standard is a substantive element of Sec. 2.7.1 , fairly construed. The State discusses the law of the case concept. It is, however, silent on the problem here, the timing of the district court's changing in an important way the standards for judging compliance. [States's brief at 10-11] The State also does not recognize the nature of the deeply embedded standard; it is an element of the substantive bargain oflntervenors and LRSD in Sec. 2. 7 .1 ; it describes steps necessary to move from a few words on a page to a reality in the operation of the district. It is not, as the State discussion implies, a global standard, apart from Sec. 2. 7 .1 , for assessing whether there is sufficient compliance with the agreement to justify a tennination of the case as to LRSD or another district. Compare State brief at 12-13. Conclusion This court should vacate the judgment of dismissal and: [ i] direct the District Court, after a hearing, to reinstate a compliance remedy for an additional period; [ii] or, alternatively, direct that the District Court, after a hearing, detennine the compliance of the LRSD with the second remedy, including the \"deeply embedded\" component as a substantive element of the remedy; [ iii] or, alternatively, direct that the District Court, after a hearing, detennine the compliance of the LRSD with the second remedy, 12 I I I I I I I I I I I I I I I I I I I utilizing the good faith standard in doing so. 13 Respectfully submitted, ls/John W. Walker John W. Walker, AR No. 64046 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 E-Mail: johnwalkeratty\u0026lt;ruaol.com Robert Pressman 22 Locust A venue Lexington, MA 02421 (781) 862-1955 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF SERVICE I, JOHN W. WALKER, the undersigned counsel for the Joshua Intervenors, Appellant herein, hereby certify that a true and correct copy of the foregoing Reply Briefhas been served on this 18st day ofDecember, 2007, by dispatch to a third-party commercial carrier for overnight delivery to the United States Court of Appeals for the Eighth Circuit, Clerk's Office, Thomas F. Eagleton Court House, Room 24 .329, 111 South 10th Street, St. Louis, Missouri 63102-1125 and via U.S. Mail and/or handdelivery to Mr. Chris Heller, FRIDAY, ELDREDGE \u0026amp; CLARK, 400 West Capitol, Suite 2000, Little Rock, AR 72201 and to the Office ofDesegregation Monitoring, One Union National Plaza, 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 . ls/John W. Walker 14 I I I I I I I I I I I I I I I I I I I CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to Federal Rules of Appellate Procedure 3 2( a )(7)( C) and Eighth Circuit Rules 28A( c ), that this Reply Brief ( exclusive of the table of contents, the table of authorities, any addendum, and any certificates of counsel) contains 3427 words. This brief complies with the typeface requirements of FRAP.32(a)(5) and the type style requirements ofFRAP.32(a)(6) because of this brief has been prepared in a proportionally spaced typeface using Wordperfect 9. 0 in Times New Roman, 14-point. The undersigned has provided one vims free digital version of this brief to the Clerk of the United States Court of Appeals for the Eighth Circuit and to all counsel of record. The digital version of this brief has been furnished on a 3.5\" computer diskette in Portable Document Format (also known as PDF or Acrobat Fonnat). The digital version was generated by printing to PDF from the original word processing file . Dated: December 18, 2007 ls/John W. Walker 15 I I I I I I I I I I I I I I 1. I I I 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201 -3325 (501) 604-5140 Facsimile (501) 604-5149 December 6, 2006 Mr. Christopher J. Heller Friday, Eldredge \u0026amp; Clark, LLP - Little Rock Regions Center 400 West Capitol Avenue Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John W. Walker, P.A. 1 723 Broadway  Little Rock, AR 72024 Re: LRSD v. PCSSD, et al, 4:82-CV-866 Dear Counsel: As you know, this case is set for a hearing to commence on Monday, December 18, 2006. By noon this Friday, December 8, 2006, please fax me a list of your witnesses with a fair and accurate summary of the expected testimony of each witness and the length of time you estimate for  direct examination. Please also carefully identify each exhibit that you intend to offer at the hearing by noon Friday, December 8. By noon Monday, December 11, 2006, each of you should fax me a letter with your estimated time of cross-examination for each adverse witness. We may have to work~ long day to complete the testimony. I understand that the media has reported a stir or two concerning some of th.e potential witnesses, and concerning one or more of the lawyers of record. If these media reports are accurate, pf e~e advise me in exact and plenary detail what part, if any, these stirs will play in the December 18 hearing. Include any new issues that you anticipate (this information should also be submitted by noon, this Friday). It is my understanding that Mr. John Burnett and Mr. Steve Quattlebaum, both of the Little Rock Bar, are representing some of the potential witnesses or other principals in the case. Both of these Page 1 of 2 I I I I I I I I I I I I I I I I I I I lawyers are on Judge Tom Ray's recusal list. In view of this I think it is likely that he will recuse in the immediate future -- assuming, of course, that any of the individuals these lawyers represent will play a part in the hearing. I look forward to hearing from you. Cordially, Isl Wm. R.Wilson,Jr. P.S . No requests for extensions of the above deadlines, please. Original to the Clerk of the Court cc: The Honorable Joe Thomas Ray Ms. Mary Johnson Other Counsel of Record Page 2 of 2 I I I I I I 1 I I I I I I I I I I I I 1 Case 4:82-cv-00866-WRW . -Document 4095 Filed 01/18/2007 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201 -3325 (501) 604-5140 Facsimile (601) 604-5149 January 18, 2007 Mr. Christopher J. Heller Friday, Eldredge \u0026amp; Clark, LLP - Little Rock Regions Center 400 West Capitol Avenue Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway . Little Rock, AR 72024 Re: LRSD ~- PCSSD, et al, 4:82-CV-00866 Dear Counsel: . We will have a total of about 20 hours for the hearing, considering dinner (lunch) breaks, and a 15  minute break each morning and afternoon. -LRSD will have 7 hours to present its case. Joshua will have a total of2 hours for cross-examine of L_RSD's witnesses .. Joshua will have 7 hours to present its case. LRSD will have a total of 2 hours to cross-examine Joshua's witnesses. Cross-examination must be brisk and to the point, i.e., a Blitzkrieg, not an invasion of Normandy. You should be keenly aware of the time limits, lest evidence you deem important gets passed by. Original to the Clerk of the Court cc: The Honorable Joe Thomas Ray Other Counsel of Record Cordially, Isl Wm. R.Wilson.Jr.  l/17?, Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Thursday, December 20, 2007 3:47 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response in Opposition to Motion This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Walker, John on 12/20/2007 at 3:46 PM CST and filed on 12/20/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4173 ( \"Po /'If~ h4 \\/\u0026lt;. clo C.1,1 W\\ C \") r Docket Text: RESPONSE in Opposition re [4141] MOTION for Declaratory Judgment, [4143] MOTION for Declaratory Judgment filed by Lorene Joshua. (Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/8/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, 1orap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=12/20/2007] [FileNumber=1062801- 0] [2c4a2e7112bb6558e0a14444d8175f6274883ca83101922b2eb8a45ff417b39196 1145745a839186c4571040330aba330e2abdbb6c616bd01284d06d3dd62049]] 1/8/2008 . . - JOHN W. WALKER, P.A. ATTORNEYS AT LAW  1723 BROADWAY LITTLE ROCK. ARKANSAS 722ftE\"  TELEPHONE (501) 374-37580 CEIVEO FAX (501) 374-4.187 . . . EMAIL: jolmwalkera ttYri'.uaol.com  DEC 2 Q 200l l)oc.. l/l,'t JOHN W. WALKER SHAWN G. CHILDS . OFCOUNSEI DESEG OFFICE OF ROBERT McHENRY. P.A REGATION MONITORJNr. . 8210 HENDERSON .ROAI Mr. Michael Gans United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis; MO 63102 December 18, ] 007  . '!!!TILE ROCK, ARKA,'\\JSAS 722 1( PHONE: (501 ) 374-3425  FA.\"\\: (501) 372-3421 EMAIL: md1ear,\u0026lt;l;Z\u0026amp;,,wbd!.ne1 . ' Re: 07-1866 Little Rock School :District, et al. v. Joshua Intervenors, et al. Dear Mt. Gans: Enclosed please find ten copies of Joshua Iritervenors ' Reply Brief along with the digital version brief on a 3. 5\" computer diskette in PDF format to be filed in the above matter. JWW:lp Enclosures cc:  All Counsel of Record I I 07-1866 IN THE UNITED STATES COURT OF APPEALS  FOR THE EIGHTH CIRCUIT MRS. LORENE JOSHUA, ET Ab~c    INTERVENOR/APPELLANT~ 11 ,;1 c,vco 'EC E O 200 V. . 7 DESEG11oiff'CE OF LITTLE ROCK SCHOOL DISTRICT 7081108 '10/iJNq APPELLEE Reply Brief of Mrs. Lorene Joshua, Et Al. On Appeal From United States District Court Eastern District of Arkansas Western Division Hon. William R. Wilson District Judge Presiding Robert Pressman 22 Locust A venue Lexington, MA 02421 781-862-1955 John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (F) 07-1866 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MRS. LORENE JOSHUA, ET AL. INTERVENOR/APPELLANTS V. LITTLE ROCK SCHOOL DISTRICT APPELLEE Reply Brief of Mrs. Lorene Joshua, Et Al. On Appeal From United States District Court Eastern District of Arkansas  Western Division Hon. William R. Wilson District Judge Presiding RECEIVED DEC 2 O 2007 OFFICEOF DESEGREGATION MONITOIDNG Robert Pressman John W. Walker 22 Locust A venue Lexington, MA 02421 781-862-1955 John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (F) Table of Contents Table of Contents ............................................... ................................ . Table of Authorities .................................... .. ..................................... . Argument .................................................. ....................... ................. . The Arguments of the LRSD and the State Lack Merit A. The Original Section 2.7.1 Commitment Encompassed Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD B. The LRSD's Freedom to Craft an Implementation Plan During the Agreed Upon Duration of the Revised Plan C. This Court's Identification of the District Court's Remedial Authority D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default E. F. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the Hearing Requires Reversal 1 11 1 1 3 3 4 6 9 Certificate of Service .............. ....................................... ........................ 12 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Attachments i Table of Authorities Black v. Lane, 22 F.3d 1395 (7thCir. 1994) Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991) First Union National Bank, Trustee v. Pictet Overseas Trust Corp., 477 F.3d 616 (8thCir. 2007) Goss v. Lopez, 419 U.s. 565 (1975) Grand State Marketing Co. v. Eastern Poultry Distributors, 975 S.W.2d 429 (Ark.App. 1998) Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610 (1976) Knight v. PCSSD, 112 F.3d 953 (8thCir. 1997) LRSD v. PCSSD, 921 F.2d 1371 (8thCir. 1990) LRSD v. PCSSD, 83 F.3d 1013 (8thCir. 1996) LRSD v. PCSSD, 237 F.Supp.2d 988 (E.D.Ark. 2002) LRSD v. PCSSD, 470 F.Supp.2d 963 (E.D.Ark. 2004) LRSD v. PCSSD, 451 F.3d 528 (8thCir. 2006) LRSD v. PCSSD, Order Declaring the Little Rock School District Unitary, Feb. 23, 2007 McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226 (lstCir. 1980) Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1 (lstCir. 2002) Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) United States v. ITT Continental Baking Company, 420 U.S. 233 (1975) ii 10, 11 10 10, 12 10 2 10 4,9 3,4 8 2,4,6 6, 7, 11, 12 1, 6, 9 2, 12 10 9, 11 4 2 Rule 55, Federal Rules of Civil Procedure Restatement (Second) of Contracts, Sec. 201(1) (1981) iii 10 2 The Arguments of the LRSD and the State Lack Merit LRSD and the State ignore the breadth, in context, of LRSD's original commitment in Section 2. 7 .1; LRSD's agreement necessarily required multiple actions creating a structure for implementation fairly characterized by the II deeply embedded 11 language later employed by the District Court, after LRSD twice failed to fulfill its voluntary commitments. They do not account for these defaults, or the District Court's remedial authority in such circumstances. They minimize, or ignore entirely the District Court's communicating an important change in the criteria for judging LRSD compliance only in its February 23, 2007 post-hearing opinion, thereby denying Joshua counsel the opportunity to challenge LRSD compliance with knowledge of all governing standards. A. The Original Section 2. 7 .1 Commitment Encompassed a Structure for Assessment/Evaluation Deeply Embedded in the Operation of the LRSD In 1998, the District Court approved the Revised Desegregation and Education Plan (Revised Plan), to which the Joshua Intervenors and the LRSD had agreed. LRSD, 451 F.3d at 3. Section 2.7.1 provided that: LRSD shall assess the academic programs implemented pursuant to Section 2. 7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. While only 65 words and 2 sentences, this was a commitment of considerable breadth. First. The text referred to annual reviews of the specified programs in terms of 1 their effectiveness in improving African-American student achievement.1 The text also obligated the LRSD to modify or replace programs shown to be ineffective. Second. The programs, identified in Sec. 2. 7 of the Revised Plan, were those \"designed to improve and remediate the academic achievement of African American students .... \" The LRSD \"identified almost 100 [such] programs . ... \" LRSD, 237 F.Supp. at 1076, n. 135. Third. The parties interpreted \"assess\" and \"assessment\" to require evaluations, a more detailed study than an assessment, of at least the key Section 2.7 programs. 237 F.Supp. at 1076-80; LRSD (dist. ct.), 2-23-07, at 13-15.2 The mere agreement to and approval of these two sentences was obviously not the goal of the parties. The objective meaning of these words, in the context of a school district of substantial size, contemplated a great deal of activity by its officers - and employees. There would be a need, inter alia, for the adoption of policies and guidelines; the employment of personnel capable of performing assessments and evaluations; interaction with those involved in the content of LRSD curriculum; communication with and training of school-level personnel; reports on 1 In 1997-98, the LRSD enrolled 24,886 students, 16,664 of whom were African Americans; LRSD then operated 50 schools. [ODM enrollment report, Dec. 7, 2007] 2 As the district court notes [LRSD, 2-7-07, at 2, 15] RESTATEMENT (SECOND) OF CONTRACTS Sec. 201(1) (1981) provides: \"Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.\"; see also U.S. v. ITT Continental Baking Co., 420 U.S. 233, 238 (1975) (reliance on \"any technical meaning words used may have had to the parties\"); Grand State Marketing v. Eastern Poultry Distribs., 975 S.W.2d 429, 442 (Ark.App. 1998) (\"In particular, when a technical term is used, the trier of fact may determine in what sense the term was used.\") 2 implementation to high level administrators and the school board; oversight; and documents containing completed program studies. Not infrequently, a phrase is used to describe an endeavor of considerable complexity. Here, a reasonable construction of the parties' broad voluntary agreement was that it contemplated, over time, multiple, mature actions at different levels and locales in the LRSD, i.e., that a structure to carry out the parties' broad agreement be \"deeply embedded\" in the LRSD curriculum and instruction program. B. The LRSD's Freedom to Craft an hnplementation Plan During the Agreed Upon Duration of the Revised Plan Section 11 of the Revised Plan provided for implementation for a three-year period, assuming substantial compliance with its terms. In this period, the system's implementation of Section 2.7.1 was not constrained by any directive(s) of the District Court. The LRSD was free to fashion and implement steps to comply with the parties' agreement. C. This Court's Identification of the District Court's Remedial Authority Prior to the approval of the Revised Plan, this court addressed in this case the implementation and enforcement of agreements of the parties. The appeal in LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990) followed the parties' agreement to a desegregation plan for each of the three districts involved in the case, as well as an \"Interdistrict Desegregation Plan\" and a \"Settlement Agreement\" concerning obligations of State officials. 921 F.2d at 1378-80. Rejecting rulings of the District Court, this court approved the parties' plans. The court noted that \"the parties have all agreed to continued monitoring\" and continued [at 1386]: 3 It is important for the settlement plans to be scrupulously adhered to -- and here we have in mind especially the kinds of programs that the plan contemplates for the Incentive Schools -- and it will be the job of the District Court to see that the monitoring is done eff ecti vel y, and that appropriate action is taken if the parties do not live up to their commitments. This court also addressed the District Court's authority in the concluding section of its 1990 opinion, which summarized this court's rulings and directives. This court wrote: 8. The District Court is instructed to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require. See also Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367,378 (1992) (\"A consent decree no doubt embodies an agreement of the parties and thus in some - respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.\"); Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997) (parties' agreement \"becomes, in a sense, a particularization of federal law applicable to these parties\"). D. The District Court's 2002 Decision and Its Initial Compliance Remedy to Address LRSD Default In 2002, following hearings, the District Court ruled on the LRSD's effort to show compliance with the Revised Plan sufficient to achieve full unitary status and the termination of court jurisdiction. The court clustered the Plan provisions at issue in six areas. LRSD, 237 F.Supp. at 1086. In all areas but one, implementation of Plan provision 2. 7 .1, the court found substantial compliance and ended court supervision. 4 237 F.Supp. at 1086, 1089. As to 2.7.1, the court found an absence of substantial compliance. Id. The District Court's discussion, 237 F.Supp. at 1076-80, may be summarized as follows: [i] LRSD interpreted Sec. 2. 7 .1 consistently to obligate the district to prepare program evaluations of the key 2. 7 programs, which by the text of that section were not limited to the programs in Plan Section 5. [At 1076-80] [ii] The school board adopted an evaluation policy belatedly, i.e., in February 2001, only in the month before LRSD filed its Compliance Report (at the time specified in the 1998 Revised Plan), seeking a complete release from court supervision. [At 1078, para. 7] [iii] LRSD lacked the personnel needed to prepare adequate evaluations. [At 1081, 5-16-01 E-mail] [iv] LRSD's March 2001 Compliance Report was marked by a lack of candor, exaggerating the extent of completion of evaluations; none were complete. [At 1079- 80, para. 14] [v] In view of its earlier consistent position that Sec. 2.7.1 required the preparation of evaluations of key 2.7 programs, LRSD's contrary position in the hearing also evidenced a lack of candor. [At 1078, para. 10] Faced with an absence of the evaluations which LRSD had agreed to be necessary and evidence of bad faith, the District Court did not simply plead with LRSD to comply. Rather, in keeping with this court's instructions in 1990, the Court devised a \"Compliance Remedy.\" This remedy required LRSD, among other things, to [237 F.Supp. at 1087-88]: [i] establish \"a program assessment procedure ... that can accurately measure the effectiveness of each program implemented under Sec. 2. 7 in improving the academic achievement of African-American students\"; [ii] prepare 5 and use certain \"program evaluations\" which it had identified; [iii] continue during a specified period to assess each 2.7 program and use this and other available information in deciding on program modification and elimination; [iv] maintain certain written records regarding these assessments, including records regarding program modification and elimination, a topic specifically addressed in Sec. 2.7.1; and [iv] use a particular external expert or someone else with equivalent qualifications to prepare the evaluations, which the LRSD had referenced. There is no proper basis for criticism of the District Court regarding the 2002 remedy. Faced with LRSD default, the court extended the implementation period and identified actions inherent in the parties' 2. 7 .1 agreement, as construed by the parties. The District Court fulfilled the responsibility identified in strong terms by this court - in 1990, in order to give Joshua Intervenors the benefit of the parties' bargain. Importantly, the LRSD neither sought clarification of the meaning of this remedy, nor appealed. LRSD, 470 F.Supp. at 969; LRSD, 451 F.3d at 536. E. The District Court's 2004 Decision and Its Second Compliance Remedy to Address LRSD Default In 2004, the LRSD sought a termination of court supervision based upon asserted compliance with the court's 2002 remedy and Sec. 2. 7 .1. The District Court again found a lack of substantial compliance. Faced with a second instance of noncompliance, the court set forth the second Compliance Remedy, which was, intentionally, more specific than the 2002 remedy. LRSD, 470 F.Supp. at 997. The factors on which the court relied in finding non-compliance and framing its 2004 remedy included the following: [i] the LRSD had again recognized that its 6 obligation encompassed some program evaluations; [470 F.Supp. at 970-71]; [ii] although, as LRSD's expert witness testified, all districts implement sub-programs within a curriculum, which can be and should be evaluated [Dr. Ross, hearing transcript at 195; 470 F.Supp. at 986], the \"evaluations\" which the LRSD presented were global overviews of the entire literacy and math-science curricula, not studies of particular programs which could be used to make the requisite decisions about program modification and elimination [ 4 70 F.Supp. at 971-72,987, 990]; [iii] neither global overview addressed the key research question identified in LRSD's assessment\\evaluation policy, i.e., \"has this curriculum/instruction program been effective in improving and remediating the academic achievement of AfricanAmerican students?\" [470 F.Supp. at 987, 990]; [iv] LRSD did not maintain the records regarding its program studies required in paragraph B of the 2002 Compliance Remedy [470 F.Supp. at 994-95]; [v] the shortcomings in LRSD performance were again attributable to staffing problems in the district [470 F.Supp. at 985-86]; [vi] in the opinion of the LRSD expert, Dr. Ross, a system the size of the LRSD could be expected to provide four or five evaluations a year [ 4 70 F.Supp. 994]; [ vii] LRSD had failed to provide to ODM and Joshua Intervenors promised progress reports on the literacy and math-science evaluations [470 F.Supp. at 988-89, 991]. There is no proper basis for criticism of the District Court regarding the 2004 remedy. Faced with a second LRSD default, the court addressed more specifically required actions and steps to achieve them. No goal, required action, or standard was outside the parties' broad agreement. Except when it came to court, LRSD always 7 identified its obligations as including some evaluations. When LRSD had twice failed in this area, the court drew upon the testimony of LRSD's expert to identify the number of evaluations to require in its second remedy. LRSD having twice failed with regard to adequate personnel, the court was specific with regard to both in-house staff (PRE) and external experts (to do evaluations). The court's deeply embedded language was not a requirement untethered to the original 2. 7 .1 commitment, or fairly characterized as made up out of whole cloth, but instead a provision fairly descriptive of the LRSD landscape in a full compliance with Section 2.7.1 setting. Had LRSD complied at the outset, or after entry of the first compliance remedy, the District Court would not have had the need to articulate a global standard, geared to the particular subject matter of Sec. 2.7.1, to help measure compliance. The District Court could not allow itself to be \"run off.\" It could not condone non-compliance. It had a responsibility, which its second remedy sought to address. To the extent relevant on this appeal, it should be noted that no part of the argument made by the dissenting judge in this court's 2006 decision withstands scrutiny. See 451 F.3d at 541-43. First. The interpretation of the word \"assessment\" and the identification of the type of program studies required overall by Sec. 2. 7 .1 ignores two critical factors. These are LRSD's repetitive construction of its bargain as requiring some evaluations and the relevance of the parties' position on this to proper interpretation of Sec. 2. 7 .1. 8 See n.2, supra.3 Second. Having qualified personnel was an inherent element of the original 2.7.1 bargain; and the District Court dealt specifically with this topic only after a second default, each encompassing personnel deficiencies, as previously shown. Third. The \"deeply embedded\" standard, invoked only after two defaults, comes straight from the broad 2.7.1 bargain, by \"reasonable implication,\"4 as previously shown. A focus on the status and completeness of the identified actions for achieving compliance with Sec. 2. 7 .1 is more (not less) objective than application of the \"good faith\" standard ultimately employed. The State expresses concern about the impact of the \"deeply embedded\" concept on the two other Pulaski County school districts. [State brief at 16-17] No - factual basis for this concern is shown. The State shows no order employing this standard regarding these systems (Pulaski County and North Little Rock). The State does not relate its concern to any particular remaining remedial provision in one of these districts. Beyond this, the State does not recognize that the standard is a part of LRSD's voluntary substantive obligation drawn from Sec. 2.7.1. and invoked by the District Court only after a second LRSD default. F. The District Court's Giving Notice of a Change in the Standards for Judging Compliance Only After the 3 Factual findings bearing upon contract interpretation are reviewed for clear error. LRSD v. PCSSD, 83 F.3d 1013, 1017 (8thCir. 1996). Given the volume of evidence relied upon, the lower court's findings that Sec. 2.7.1 encompassed evaluations are unassailable. 4 Knight v. PCSSD, 112 F.3d 953, 954 (8th Cir. 1997). 9 Hearing Requires Reversal Prior notice, including of governing standards, is a fundamental and required element of fairness in many contexts. See [A] Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1 (1st Cir. 2002) (district court entered default judgment on ADA claim, but after hearing conducted pursuant to Rule 55(b)(2), Fed.R.Civ.Pro., dismissed claim on the merits; while the district court could conduct a hearing \"to 'establish the truth of any averment' in the complaint,\" it could only do so if it \"had made 'its requirements known in advance to the plaintiff, so that [he] could understand the direction of the proceeding and marshall such evidence as might be available to [him].' Id. (quoting McGinty v. Beranger Volkswagen, Inc., 633 F.2d 226, 229 (lstCir. 1980).''; [B] Black v. Lane, 22 F.3d 1395, 1398 (7thCir. 1994) ( opinion written by Circuit Judge Lay, sitting by designation) (same); [C] First Union NationalBankv. PictetOverseas Trust, 477 F.3d 616,621 (8thCir. 2007) (discussing possible applicability of law of the case doctrine; \"Even had the district court intended to resolve the fiduciary duty issue in its Interest Rate Decision, it failed to do so with sufficient directness and clarity to establish the settled expectations of the parties necessary for the subsequent application of the law of the case doctrine.\"); [D] Goss v. Lopez, 419 U.S. 565, 581-82 (1975) (in context of school suspension for disciplinary reason, required element of affording procedural due process rights is that \"the student [must] first be told what he is accused of doing and what the basis of the accusation is\"; this affords student \"opportunity to present his side of the story\" in an informed manner); [E] Hynes v. Mayor and Council of Borough of Oradell, 425 10 U.S. 610, 620 (1976) (whether as to law or rule persons \"of common intelligence must necessarily guess at its meaning and differ as to its application\"); [F] Board of Educ. of Oklahoma City v. Dowell, 498 U.S. 237,246 (1991) (\"[A] school board is entitled to a rather precise statement of its obligations under a desegregation decree.\"). The District Court departed from this basic standard of fairness. In Part K of the 2004 Compliance Remedy, the District Court identified LRSD's \"obligations under Sec. 2. 7 .1 as specified in the Compliance Remedy [ of 2004]\" as the measuring rod for assessing the district's right to a termination of court jurisdiction. [ 470 F.Supp. at 1000] That remedy, in Part B, included the \"deeply embedded\" language, which even referred to \"[p ]art of LRSD's proof, at the next compliance hearing .... \" [ 4 70 F.Supp. at 998] The District Court gave notice of changing this standard only in its post-hearing opinion. [LRSD, 2-7-07, at 16-17] Obviously, Joshua counsel could not, on a key point, \"understand the direction of the proceeding and marshall such evidence as might be available to [them]\" [Ramos-Falcon and Black, supra], when the change to the \"good faith\" standard was set forth only after the evidentiary hearing was completed. Moreover, \"management orders\" and guidance to counsel before the hearing magnified the harm. By letter of December 6, 2006, the District Court required each side to present by December 8 for each witness \"a fair and accurate summary of the expected testimony ... and the length of time you estimate for direct examination.\" In a letter of January 18, 2007, the court stated that each side would be limited to 7 11 hours for its direct case and 2 hours for cross-examination. The court added: \"Crossexamination must be brisk and to the point, i.e., a Blitzkrieg, not an invasion of Normandy.\" [See attachments to this brief] In this setting, Joshua counsel had to focus with great care on the existing compliance standards. LRSD argues that Intervenors should have perceived the change in standards. [LRSD brief at 37-38] Neither the Court of Appeals, nor the District Court before the 2006 hearing or its decision, identified the good faith standard ultimately used by the lower court. Whether one refers to the law of the case or the criteria for assessing compliance, the standard actually used was not timely identified with \"sufficient directness and clarity .... \"First Union National Bank, 477 F.3d at 621. Moreover, LRSD does not recognize that the deeply embedded standard is a substantive element - of Sec. 2.7.1, fairly construed. The State discusses the law of the case concept. It is, however, silent on the problem here, the timing of the district court's changing in an important way the standards for judging compliance. [States's brief at 10-11] The State also does not recognize the nature of the deeply embedded standard; it is an element of the substantive bargain of Intervenors and LRSD in Sec. 2.7.1; it describes steps necessary to move from a few words on a page to a reality in the operation of the district. It is not, as the State discussion implies, a global standard, apart from Sec. 2.7.1, for assessing whether there is sufficient compliance with the agreement to justify a termination of the case as to LRSD or another district. Compare State brief at 12-13. 12 Conclusion This court should vacate the judgment of dismissal and: [i] direct the District Court, after a hearing, to reinstate a compliance remedy for an additional period; [ii] or, alternatively, direct that the District Court, after a hearing, determine the compliance of the LRSD with the second remedy, including the \"deeply embedded\" component as a substantive element of the remedy; [iii] or, alternatively, direct that the District Court, after a hearing, determine the compliance of the LRSD with the second remedy, utilizing the good faith standard in doing so. 13 Respectfully submitted, /s/.Tohn W. Walker John W. Walker, AR No. 64046 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 E-Mail: johnwalkeratty@aol.com Robert Pressman 22 Locust A venue Lexington, MA 02421 (781) 862-1955 CERTIFICATE OF SERVICE I, JOHN W. WALKER, the undersigned counsel for the Joshua Intervenors, Appellant herein, hereby certify that a true and correct copy of the foregoing Reply Brief has been served on this 18st day of December, 2007, by dispatch to a third-party commercial carrier for overnight delivery to the United States Court of Appeals for the Eighth Circuit, Clerk's Office, Thomas F. Eagleton Court House, Room 24.329, 111 South 10th Street, St. Louis,Missouri 63102-1125 and via U.S. Mail and/orhanddelivery to Mr. Chris Heller, FRIDAY, ELDREDGE \u0026amp; CLARK, 400 West Capitol, Suite 2000, Little Rock, AR 72201 and to the Office of Desegregation Monitoring, One Union National Plaza, 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201. ls/John W. Walker 14 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to Federal Rules of Appellate Procedure 32(a)(7)(C) and Eighth Circuit Rules 28A(c), that this Reply Brief (exclusive of the table of contents, the table of authorities, any addendum, and any certificates of counsel) contains 3427 words. This brief complies with the typeface requirements of FRAP.32(a)(5) and the type style requirements of FRAP.32(a)(6) because of this brief has been prepared in a proportionally spaced typeface using Wordperfect 9.0 in Times New Roman, 14-point. The undersigned has provided one virus free digital version of this brief to the Clerk of the United States Court of Appeals for the Eighth Circuit and to all counsel of record. The digital version of this brief has been furnished on a 3.5\" computer diskette in Portable Document Format (also known as PDF or Acrobat Format). The digital version was generated by printing to PDF from the original word processing file. Dated: December 18, 2007 ls/John W. Walker 15 JOHN W. WALKER, P.A. ATTORNEYS AT LAW 1723 BROADWAY  LITTLE ROCK, ARKANSAS 1:miec E' ivE 0 TELEPHONE (501) 374_375f1'E,;, . FAX (501) 374-4187 EMAIL: johnwalkeratt1'1i:vaol.com DEC 2 G 2007 JOHN W. WALKER SHAWN G. CHILDS l\\llr. Michael Shay United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329 St. Louis, MO 63102 December 20, 2007 OFFICE OF OF COUNS DESEGREGATION MONITORINIRoBERT McHENRY, P 8210 HENDERSON RO LITTLE ROCK, .-\\RK.4..\u0026lt;\"\\/SAS 72: PHONE: (501) 374-3425  FA,'{ (501) 372a3 EMAIL: mchenr,1.1hswbdl Re: 07-1866 Little Rock School District, et al. v. Joshua Intervenors, et al. Dear Ivlr. Shay: Pursuant to our telephone conversation, enclosed you will find the original pages 13, 14, and 15 with Mr. Walker's signature. By copy of this letter, I am also providing all counsel listed on the Certificate of Service with these pages. If there are any additional corrections which need to be made, please advise. Sincerely, /\\ .Y  l ....-2 r7'1[!l0,1 o~v~ YsiL6raPowell Secretary to John W. Walker LP: Enclosures 13 . Walker, AR No. 64046 John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 E-Mail: johnwalkeratty(a)aol.com Robert Pressman 22 Locust A venue Lexington, MA 02421 (781) 862-1955 CERTIFICATE OF SERVICE I, JOHN W. WALKER, the undersigned counsel for the Joshua Intervenors, Appellant herein, hereby certify that a true and correct copy of the foregoing Reply Brief was served on the 18st day of December, 2007, by dispatch to a third-party commercial carrier for overnight delivery to the United States Court of Appeals for the Eighth Circuit, Clerk's Office, Thomas F. Eagleton Court House, Room 24.329, 111 South 10th Street, St. Louis, Missouri 63102-1125 and via U.S. Mail, postage prepaid to Mr. Chris Heller, FRIDAY, ELDREDGE \u0026amp; CLARK, 400 West Capitol, Suite 2000, Little Rock, AR 72201 and to the Office ofDesegregation Monitoring, One Union National Plaza, 124 West Capitol, Suite 18 14 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies, pursuant to .Federal Rules of Appellate Procedure 3 2( a )(7)( C) and Eighth Circuit Rules 28A( c ), that this Reply Brief ( exclusive of the table of contents, the table of authorities, any addendum, and any certificates of cotmsel) contains 3427 words. This brief complies with the typeface requirements of FRAP.32(a)(5) and the type style requirements ofFRAP.32(a)(6) because of this brief has been prepared in a proportionally spaced typeface using W ordperfect 9. 0 in Times New Roman, 14-point. The tmdersigned has provided -one virus free digital version of this brief to the Clerk of the United States Court of Appeals for the Eighth Circuit and to all cotmsel of record: The digital version of this briefhas been famished on a 3.5\" computer diskette - in Portable Docmnent Fonnat (also known as PDF or Acrobat Fonnat). The digital version was generated by printing to PDE from the original word processing file . Dated: December 20, 2007 15 Page 1 of2 polly From: ecf _ su pport@ared. uscourts. gov Sent: Thursday, December 20, 2007 3:57 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Brief in Opposition This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. Notice of Electronic Filing U.S. District Court Eastern District of Arkansas The following transaction was entered by Walker, John on 12/20/2007 at 3:56 PM CST and filed on 12/20/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4174 Docket Text: BRIEF IN OPPOSITION filed by Lorene Joshua re [4145] Brief in Support (Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/8/2008 . ' . . Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalk:eratty@aol.com, jspringer@gabrielmail.com, 1orap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=12/20/2007] [FileNumber=l062865- 0] [65977f3b2c5e2ab4a9418b842718fd4c5295:f29ef9e7ef3b12d48014f6ad014540 aead3a02061f86aal 1564a5f02afl 7570a3601c799a30116bc81d2c7b02225]] 1/8/2008 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. MS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. Poe. 'i 115 PLAINTIFF DEFENDANT INTER VEN ORS INTER VEN ORS RESPONSE TO PCSSD'S MOTION FOR A DECLARATION OF UNITARY STATUS Comes the Intervenor, Pulaski Association of Classroom Teachers (PACT), and, for its response to Pulaski County Special School District's Motion for a Declaration of Unitary Status, states: 1. Dr. Donna Humpries, a member of PACT, has pending an individual Title VII and 14th Amendment claim against Pulaski County Special School District (PCSSD) in Humphries v. PCSSD, E.D. Ark. Case No. 4:06 CV-00606. Likewise, Ms. Norma Dixon, a noncertified employee of PCS SD, has pending an individual Title VII claim against PCS SD. Both are represented herein by PACT and other named class representatives. [Dkt. 1179] 2. Dr. Humphries alleges PCS SD has preferentially hired and promoted minority applicants for elementary administrative positions since at least 2001. The statistical evidence in support of her allegation is overwhelming.. See, Employment Analysis of Elementary School Assistant Principals in the Pulaski County Special School District (report of plaintiffs Page 1 of 5 3. expert, Dr. David Sharp), Docket# 38, Exhibit 1, in 4:06cv00606. In its motion for release from court supervision, PCS SD cites the very statistic which tends to prove racial bias in hiring and promotion relative to Dr. Humphries' case. Specifically, PCS SD informs the court that over fifty-two percent of its school based administrators are black. Brief in Support of PCSSD'S Motion for a Declaration of Unitary Status, at 5, (\"Brief, \"hereafter). Unfortunately, PCS SD fails to report to the court that only 21 % of the relevant labor pool of certified teachers for those positions is black, and therefore, it has reached this 52% level by methods that imply a further violation of the 14th Amendment. It is so far undisputed that PCS SD hires or promotes black applicants to elementary assistant principal positions at a rate from 2. 8 to 3 .2 standard deviations above what is expected based upon the relevant labor pool of certified teachers. See, Docket# 38, Exhibit 1, Case No. 4:06cv00606. No similar detailed analyses of junior high school and high school hires and promotions have been performed because of restrictions placed on discovery by the court in Humphries case. In Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977), the court holds that hiring or promoting one race at rates two or three standard deviations above the expected rate for that race is sufficient to establish that race was a factor in the hiring or promotion process for those positions. 4. Nevertheless, citing the racial composition of its certified administrative staff, PCSSD asserts that it is \"in compliance with\" a constitutional standard for ''Faculty and Administrative Assignments,\" citing Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970). Brief at4-5, andfn. 8. For many years, PCSSD had met the legitimate racial diversity goals required by the court - i.e. nearly every certified Page 2 of 5 employee category reflected the relevant labor pool, - and thus, a phase of enhanced hiring and promotion of minorities was not required or contemplated by the court's approval of PCSSD's desegregation plans from 1987 forward. See, LRSD v. PCSSD, 659 F.Supp. 363, 369 (E.D.Ark. 1987)(\"Similarly, the affirmative action plan for administrative staff appears to have been successful although there remain underrepresentation in two specific categories: coordinators and directors .... The percentage of black administrators (24. 7%) is good and indicates a positive step toward curing this deficiency.\" Id.). By adoption of Plan 2000, PCS SD administration did reflect the labor pool - roughly 21 % of its administrators were black, and 21 % of certified teachers in the area were black. The same basic labor pool exists today, but 52.9% of administrators in PCSSD are black. At least in elementary schools, the statistics meet the legal standard for a prima facie case ofrace discrimination against white applicants for those jobs. How does this apparent race discrimination in employment affect the desegregation efforts of the three districts? We do not hazard a guess, nor is it PACT' s duty to analyze that question. However, these very considerations - the racial composition of PCSSD's employees - were a major component of the evidence which Judge Woods focused on when he made the original liability finding in this case. 5. PACT's concern on behalf of Dr. Humphries, is that PCSSD is seeking implicit or explicit court approval of the recent (2000-2006) hiring and promotions which resulted in the school's administration rising from 20% black to 52% black as if that rate of hiring of black administrators was related to a legitimate remaining remedial obligation in this case. Our concern is further heightened by the fact that PCS SD made no similar mention in its motion for unitary status that about 21% of its teachers are minority, and that about 21% of new Page 3 of 5 hires each year are black. Those statistics comport with the relevant labor pool percentages, but garnered no special mention for possible mention by this court when assessing PCS SD' s progress. 6. Whether the race discrimination now evident in PCSSD's employment of certified administrators will alter the court's opinion on unitary status, PACT urges the court to make an explicit exclusion of the district's administrative hiring and promotion process in any ruling on PCSSD's pending motion. If the court finds the issues raised herein need to be addressed in the hearing on the pending motion, PACT stands prepared to present that evidence for the court's benefit. 7. Ms. Dixon's employment claim arises out of her pursuit of a buyer position in the business department of PCS SD. On information and belief, that department has never hired a black buyer and all upper management positions in that department are filled by whites. WHEREFORE, PACT prays any order issued on PCS SD' spending motion for unitary status make explicit exclusion of the issues ofracial discrimination in hiring and promotions as alleged in Humphries v. PCSSD, Case No. 4:06 CV-00606 (E.D. Ark.) and Dixon v. PCSSD, Case No. 4-07-cv- 01119 (E.D.Ark). Respectfully submitted, ls/Mark Burnette Mark Burnette, ABN 88078 MITCHELL, BLACKSTOCK,BARNES WAGONER, IVERS \u0026amp; SNEDDON, PLLC 1010 West Third P. 0. Box 1510 Little Rock, AR 72203-1510 (501) 378-7870 Page 4 of 5 Certificate of Service I hereby certify that a true and accurate copy of the foregoing has been mailed to the following, postage prepaid, and filed electronically with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to all counsel of record, this 21st day of December, 2007: Mr. SamuelJones,m Mitchell, Williams, Selig, Gates, Woodyard, PLLC 425 West Capitol Ave. Ste.1800 Little Rock, Arkansas 72201 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Ste. 2000 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol , Suite 3400 Little Rock, AR 72201 By: ls/Mark Burnette Mark Burnette, ABN 88078 Page 5 of 5 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, December 21, 2007 2:43 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response to Motion This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Burnette, Mark on 12/21/2007 at 2:42 PM CST and filed on 12/21/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski Association of Classroom Teachers WARNING: CASE CLOSED on 01/26/1998 Document Number: 4175 Docket Text: RESPONSE to Motion re [4159] MOTION for Order for a Declaration of Unitary Status filed by Pulaski Association of Classroom Teachers. (Burnette, Mark) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 1/8/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com,jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=12/21/2007] [FileNumber=1063977- 0] [6eeelb572383b02aa3b59dde83a32470fef7c66e2684100df9c47bc82e187b9ec9 a17dfd4938fe363ade679760fd69221e663289e4f47612309d62063ed2041b]] 1/8/2008 J)oc f/7? UNITED STATES DISTRICT COURT FILED EASTERN DISTRICT OF ARKANSAS EAS'Ji'S,DiSTRICTCOURT RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE RN DISTRICT ARKANSAS WILLIAM R. WILSON, JR. UNITED STATES DISTRICT JUDGE Mr. Stephen W. Jones 500 W. CAPITOL AVENUE, SUITE 0444 LITTLE ROCK, AR 72201 December 21, 2007 Mr. John W. Walker John W. Walker, P.A. 1723 Broadway DEC 21 2007 JAMES ~RMAC~CLERK By: ~~~ OFFICE: (501) efii.fil'l:QileRK FAX: (501) 6045149 Jack Nelson Jones Fink Jiles \u0026amp; Gregory 425 West Capitol Avenue, Suite 3400 Little Rock, AR 72201-3483 Little Rock, AR 72024 Mr. Samuel Jones, III Mitchell, Williams, Selig, Gates \u0026amp; Woodyard 425 West Capitol Avenue, Suite 1800 Little Rock, AR 72201 RE: Little Rock School District, et al v. Pulaski Cotmty School District, et al 4:82-CV-00866-WRW Dear Counsel: I'm strongly disinclined to have a hearing on your motions to declare your Districts unitary until the Eighth Circuit renders its decision in the Little Rock School District case. As you know, Joshua Jnterveners are challenging the compliance standard I used during the last hearing. Until this issue is resolved by the Eighth Circuit, it seems to me that it would be ill-advised to conduct extensive, expensive hearings on your requests. While I've still got my mind charged with this issue, I anticipate that I will soon enter an order along the lines suggested above. Original: cc: Cordially, [t{/{MJJIL Wm. R. Wilson, Jr. /4r. James W. McCmmack, Clerk of the Court The Honorable Thomas Ray The Honorable Andre-e Roaf MIME-Version : 1 . 0 From:ecf_support@ared . uscourts . gov To:ared_ecf@localhost . localdomain a-res sage-Id : \u0026lt;1063998@ared . uscourts -. gov\u0026gt; ~ cc: Subject:Activity in Case 4:82-cv-00866-WRW Little Rock Schoome.tr.ae Pulaski Cty School , et al Order n C  fl/ED Content-Type : text/plain***NOTE TO PUBLIC ACCESS USERS*** Judicia ~elf'e f the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electrc[j},F.5a2J-~ , ?Rlf7 receipt is required by law or directed by the filer. PACER access fees ~'ffl]ly to all other users. To avoid later charges , download a copy of each docurr#~cEBJuring this first viewing . U. S . District Court DESEGREGATION F Eastern District of. Arkansas MDNITORJNG Notice of Electronic Filing The following transaction was entered on 12/21/2007 2:55 PM CST and filed on 12/21/2007 Case Name : Little Rock School , et al v . Pulaski Cty School , et al Case Number : 4:82-cv-866 https://ecf.ared.uscourts . gov/cgi-bin/DktRpt . pl?26052 Filer : WARNING: CASE CLOSED on 01/26/1998 Document Number : 4176 Copy the URL address from the line below into the location bar of your Web browser to view the document : Document: https://ecf.ared.uscourts . gov/docl/02701103404?magic_num=MAGIC\u0026amp;de_seq_num=200582 9\u0026amp;caseid=26052 Docket Text: A LETTER/ ORDER the Court is strongly disinclined to have a hearing on Motions W,to Declare Districts Unitary until the Eighth Circuit renders its decision in the LRSD case. Signed by Judge William R. Wilson , Jr on 12 /21/07 . (d    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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Department of Education","Project management","Office of Desegregation Monitoring (Little Rock, Ark.)","School facilities","Middle schools","Maumelle Middle School (Maumelle, Ark.)","School enrollment","African Americans--Education"],"dcterms_title":["Court filings regarding Arkansas Department of Education (ADE) project management tool, memorandum of authority, and Pulaski County Special School District's (PCSSD's) response to motion."],"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/1773"],"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":["22 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\u003cdcterms_description type=\"array\"\u003e   \n\n\u003cdcterms_description\u003eCourt filings: District Court, notice of filing, Arkansas Department of Education (ADE) project management tool; District Court, motion; District Court, memorandum of authority; District Court, Pulaski County Special School District's (PCSSD's) response to motion; District Court, memorandum in support of Pulaski County Special School District's (PCSSD's) response to motion; District Court, order; District Court, correction of order; District Court, notice of electronic filing, order; 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.    ARKAN SAS DEPARTM ENT OF Dr. T. Kenneth James, Commissioner --Edacati1fn-4 State.Capitol Mall----- Little Rock,.AR. 72201,.107-1 (501) 682-4475 http://ArkansasEd.org October 31, 2007 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Office of Desegregation Monitoring One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones III RECEIVED NOV 2 - 2007 OFFICE OF IISmRWT~ Mmfil11f!1mllE Mitchell, Williams, Selig, Gates \u0026amp; Woodyard 425 West_ Capitol A venue, Suite 1800 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 WRW Dear Gentlemen: 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 October 2007 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. JieR General Counsel Arkansas Department of Education SS:law cc: Scott Richardson, Attorney General's Office STATE BOARD OF EDUCATION: Chair: Diane Tatum, Pine Bluff  Vice Chair: Randy Lawson, Bentonville Members: Sherry Burrow, Jonesboro  Jim Cooper, Melbourne Dr. Calvin King, Marianna  Dr. Tim Knight, Arkadelphia  Dr. Ben Mays, Clinton Marylane Rebick, Little Rock  Dr. Naccaman Williams, Springdale An Equal Opportunity Employer IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED NOV 2- 2007 LITTLE ROCK SCHOOL DISTRICT, ET AL V. NO. LR-C-82-866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE W. KNIGHT, ET AL PLAINTIFFS Off.lttf ~ Mimmmmtm DEFENDANTS INTERVENOR$ INTERVENOR$ 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 October 31 , 2007 eas'$1tmt@!imorma]on:avaiIrortr~gtemtrei?,S.oE2o_ogi ttretA0 EtcaI\u0026amp;uIatec1ntm s:tatelfilJllnclaWJ=~orlj.YIOw.mno1m1tomeri iro'Kcsiaiwwt 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. UNITED STATES bISTR.l:Ct COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. LR-C-82-866 WRW 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 AD E's Project Management Tool for October 2007. Respectfully Submitted, mith, Bar # 92251 General Counsel Arkansas Department of Education #4 Capitol Mall, Room 404-A Little Rock, AR 72201 501-682-4227 .,._  I .. CERTIFICATE OF SERVICE I, Scott Smith, certify that on October 31, 2007, 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. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes Wagoner, Ivers \u0026amp; Sneddon P. 0. Box 1510 Little Rock, AR 72203-1510 Office of Desegregation Monitoring One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones, III Mitchell, Williams, Selig, Gates \u0026amp; Woodyard 425 West Capitol, Suite 1800 Little Rock, AR 72201 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Thursday, November 01, 2007 3:48 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Notice (Other) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** You may view the fded documents once without charge. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 11/1/2007 at 4:48 PM CDT and filed on 11/1/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4161 Docket Text: NOTICE OF FILING ADE's Project Management Tool for October 2007 by Arkansas Department of Education ( dac) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 2/5/2008 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l 1/1/2007] [FileNumber=1031013-0 ] [2cla69filbc1165b8dcc0d02314a461bfcdb71a68d13811829e3b632229fd4b6858 be2e704b6d8ffl 428416598efil6896ef5929dl 132deb3bd453958975e7eb6]] 2/5/2008 Page 2 of2 Case 4:82-cv-00866-WRW Document 4161 Filed 11/01/2007 Page 3 of 3 UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS Exhibits Attached to Original  Document in Courts 's Case File Case 4:82-cv-00866-WRW Document 4162 Filed 11/16/2007 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT No. 4:82CV00866-WRW /JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. MOTION PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS The Joshua Intervenors respectfully request the court to enter an order directing the Office - of Desegregation Monitoring (ODM) to review the Pulaski County Special School District student assignment plan and to make other reviews as may be necessary to determine the extent to which the PCSSD has complied with the prior orders of this court. On October 22, 2007, undersigned counsel informed the court of the PCS SD' s plans to build a replacement secondary facility in the Maumelle community. At that time, counsel brought to the court's attention that the proposed new facility may advantage certain students of higher socio economic level and disadvantage those, largely African American students, oflower socio economic status. Joshua also brought to the court's attention that the PCSSD appears to be in the process of recreating separate schools which may be largely unequal in terms of physical facilities, at the least, and that in order for the court to access this process, independently, the ODM should be requested to make inquiry into the subject. On October 29, 2007, the PCS SD filed a motion for unitary status. In that motion the district Case 4:82-cv-00866-WRW Document 4162 Filed 11/16/2007 Page 2 of 3 asserts that it has substantially complied with existing orders of the court and the Court of Appeals. The Eighth Circuit has directed the creation and utilization of the ODM in order to make appropriate and pertinent inquiries and to otherwise monitor compliance with respect to the commitments that the district has made in order to fully eliminate all vestiges of racial discrimination from the school system. The district has made its filing in part because it was induced, if not directed, by the Arkansas Legislature to seek unitary status. Whether the district is unitary is a judicial determination to be made upon consideration of any reports regarding the subject by the ODM and the evidence that it otherwise submitted by the parties regarding the subject. Joshua's earlier request for ODM monitoring and a report thereon is appropriate and will be helpful to the court when the court undertakes hearings on the subject. The primary monitor approved by the Court of Appeals, which has consistently been financed - by the defendant school districts and the State of Arkansas, is the Office of Desegregation Monitoring. Joshua submits that it is appropriate before this subject is heard by the court that the ODM review all aspects of the existing plans of the PCS SD and all of its school operations including comparative quality of facilities and make a monitoring report to the court in advance of such hearing. WHEREFORE, premises considered, the Joshua Intervenors respectfully move the court to direct the ODM to enter an overall appraisal pursuant to a comprehensive monitoring undertaking of the extent of compliance by the PCSSD which the existing plans of the district and that it include within such report a valuation and relative quality assessment of all of the facilities within the Pulaski County School District where students attend its schools. Respectfully submitted, .. . . \"\" Case 4:82-cv-00866-WRW Document 4162 Filed 11/16/2007 Page 3 of 3 Robert Pressman Attorney at Law 22 Locust A venue Lexington, MA 02421 (781) 862-1955 JOHN W. WALKER, P.A Attorney at Law 1723 Broadway Little Rock, Arkansas 72206 Tel: (501) 374-3758 Fax: (501) 374-4187 By: ls/John W. Walker John W. Walker, AR Bar No. 64046 CERTIFICATE OF SERVICE I, John W. Walker, certify that on this 17lh day of November, 2007, I electronically filed the foregoing paper with the Clerk of Court using the CM/ECF System, which will send notification of such filing to all counsel of record. Isl John W. Walker Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, November 16, 2007 1 :55 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Motion for Order This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Walker, John on 11/16/2007 at 1 :55 PM CST and filed on 11/16/2007 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4162 Docket Text: MOTION for Order Regarding PCSSD's Plans by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua (Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com - Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com 2/12/2008 Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l 1/16/2007] [FileNumber=1040037- 0] [54a0bc539b60990a46a8b7ec6e2202ff0c738518f338620f9e5f1329b2e70ec947 c77e21e7848fcaf09be2bb85436db8e90ceab27fd67c787101d47227eace75]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4163 Filed 11/16/2007 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT No. 4:82CV00866-WRW /JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. MEMORANDUM OF AUTHORITY PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS The authority for the requested relief as set forth in the motion is found at Little Rock Sch. Dist. v. Pulaski Cty. Sp. S., 921 F.2d 1371 (8th Cir. 1990). The Court of Appeals and the district court have repeatedly recognized the authority, responsibility and duty of the ODM to monitor the plans of the parties as well as the actions of the State of Arkansas. The request being made by the Joshua Intervenors is made pursuant to that authority. The public interest will be served by the requested monitoring in advance of any judicial proceedings. Robert Pressman Attorney at Law 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted, JOHNW. WALKER,P.A Attorney at Law 1723 Broadway Little Rock, Arkansas 72206 Tel: (501) 374-3758 Fax: (501) 374-4187 By: ls/John W. Walker John W. Walker, AR Bar No. 64046 . ...... . ,, ...... Case 4:82-cv-00866-WRW Document 4163 Filed 11/16/2007 Page 2 of 2 CERTIFICATE OF SERVICE I, John W. Walker, certify that on this 17th day of November, 2007, I electronically filed the foregoing paper with the Clerk of Court using the CM/ECF System, which will send notification of such filing to all counsel of record. /s/ John W. Walker Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, November 16, 2007 2:03 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Brief in Support This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. Notice of Electronic Filing U.S. District Court Eastern District of Arkansas The following transaction was entered by Walker, John on 11/16/2007 at 2:03 PM CST and filed on 11/16/2007 Case Name: Case Number: Filer: Little Rock School, et al v. Pulaski Cty School, et al 4:82-cv-866 Leslie Joshua Stacy Joshua Wayne Joshua Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4163 Docket Text: BRIEF IN SUPPORT filed by Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua re [4162] Motion for Order Regarding PCSSD's Plans (Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley , Jr clayfendley@comcast.net, yeldnef@yahoo.com - Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com 2/12/2008 Stephen W. Jones sjones@jlj.com, linda.calloway@jlj .com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original fdename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l 1/16/2007] [FileNumber=1040061- 0] [a77d50fb0f3d54f353e9ab6e795403d30480761abbb4dc8c913ce1369cf26e8128 9f7c3a8d6c86655940c36005af7cbe76ee40139e2fe8ab148ca7baa008b410]] 2/12/2008 ;i1aACJ'U..,...  ~'j,L, c..,= Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 1 of 12 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 RESPONSE TO MOTION PLAINTIFF DEFENDANTS INTERVENORS INTER VEN ORS 1. On this day, November 16, 2007, Joshua filed a confusing \"motion\" that alternately seems to address the PCSSD's Motion for Unitary Status which was filed on October - 29, 2007, its plans to acquire a new location for Oak Grove High School next to Mamelle Middle School and a fairly rambling recitation of Joshua's view of the current role of the ODM and a request that the ODM evaluate PCSSD's plan compliance and facilities needs. 2. For the reasons set forth below, and because time is of the essence, this response primarily addresses that part of the Joshua motion, primarily. the second paragraph of the motion, regarding a replacement location for the antiquated Oak Grove High School. 3. The PCSSD will separately address other aspects of the Joshua motion in a separate response but in a timely fashion. A Brief History of the Current PCSSD Plan 4. Under previous incarnations of the PCS SD desegregation plans, fairly elaborate rules and tests applied to the selection of new school sites and court approval was specifically - required. Case 4:82-cv-00866-WRW Document 41.6 4 Filed 11/16/2007 Page 2 of 12 5. At the behest of the then presiding District Court Judge, the PCS SD jettisoned its cumbersome and comprehensive plan originally dating from 1992 and the PCSSD and Joshua negotiated a new plan, commonly known as Plan 2000. 6. Joshua and the PCSSD jointly presented the Plan for Court approval and it was duly approved and went into effect during 2000. 7. Many of the previous requirements were removed from the Plan. For instance, there is no longer any section regarding site requirements or court approval for new schools. Rather, the Plan simply states: H. School Facilities (3) The PCSSD shall notify the Joshua Intervenors of plans for constructing new schools and for adding capacity to existing schools. The notice shall identify the capacity of the proposed facility, the area of the system to be served, and the projected impact on the racial make-up of the students in each school expected to be affected by the new construction. The Joshua Intervenors shall have a period of 14 days in which to provide input concerning each such proposal. The Status of the Cunent Maumelle Site 8. The Maumelle School site was selected by a bi-racial committee of patrons from the affected areas and the vote of that committee was unanimous to select the site next door to the current Maumelle Middle School as a replacement for the ancient Oak Grove High School. 9. Pursuant to Plan 2000, counsel for Joshua was duly notified on September 7, 2007. (See Exhibit A). Accordingly, it was the PCSSD which informed the Court on September 7, 2007, of its plans to acquire the Maumelle site for the new Oak Grove High School. Joshua's cu1Tent assertion that it was Joshua which so notified the Court on October 22, 2007, is erroneous and the date of Joshua's letter does not comply with the time constraints mentioned and agreed to in Plan 2000. 2 Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 3 of 12 1 O. . Joshua is asking the Court to order the ODM to study this site. It is respectfully submitted that the purpose of the ODM is to monitor Plan compliance. It cannot be disputed that PCS SD complied with the Plan by formally advising Joshua of the site selected. 11. A copy of the letter from counsel for Joshua dated October 22, 2007, is attached as Exhibit B. The Jacksonville issue referred to in the letter arises from legislation passed in the most recent legislative session which might result in a proposal to create a new Jacksonville School District. However, this has absolutely nothing to do with the plans for a new school in Maumelle. 12. As we explained in our initial letter, the entire student body for the new Maumelle school would matriculate from the Maumelle Middle School which draws its students from the Oak Grove area, M-to-M transfer students from Litt!~ Rock and Maumelle which is rapidly increasing its black population. Indeed, the current enrollment for Maumelle Middle School is approximately 44% African American. 13. Accordingly, there is no burden issue to study or discuss. Oak Grove, Maumelle and transfer students from Little Rock are simply not involved in any shape, form or fashion in the calculous that may or may not lead to a Jacksonville School District, as contended in Joshua's letter of October 22, 2007. 14. The Oak Grove community is on the west side of Camp Robinson which forms a land barrier between that northwestern part of the PCS SD and the northwestern part which commences in the Gravel Ridge/Sherwood area and extends on over into Jacksonville. . f 15. The status of Oak Grove High School has previously been assessed both by the State and the PCSSD's own studies. Each study has concluded that it should be closed and a new school built. Again, in the final analysis, the question should be: \"What does Plan 2000 require?\" It requires notice to Joshua. Notice was duly given on September 7, 2007. 45 days 3 Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 4 of 12 passed before Joshua commented; the 14 days for comments specified in Plan 2000 expired not later than September 21 , 2007. Indeed, the Maumelle Middle School, from which this new school would draw its students, was not opposed by Joshua when it was selected and built several years ago. The schools would simply now be beside each other. The Current Status ~f the Property Acquisition 16. On November 15, 2007, the PCSSD received notification pursuant to the purchase contract that the sellers were invoking their right to close the Maumelle property transaction on or before December 15, 2007. Accordingly, time is of the essence. 17. This response is accompanied by a Memorandum Brief which more fully explains the PCSSD position. The PCSDD requests that a decision be accelerated by this Court denying the Joshua motion insofar as it seeks to block or delay the acquisition of the site for a new Maumelle High School which would serve a student body which is approximately 44% African American. WHEREFORE, the PCSSD prays for an order of this Court declaring that deciding and , selecting new school sites in the PCSSD, absent possible extraordinary circumstances which do not exist here and are not alleged here, are no longer subject to the scrutiny and micromanagement of this Court or of the ODM, and that the PCSSD is free to complete an orderly site selection process. Respectfully submitted, MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODYARD, P.L.L.C. 425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 (501) 688-8800 FAX: (501) 688-8807 Isl M. Samuel Jones. III M. Samuel Jones III (76060) E~mail: sjones@mwsgw.com 4 Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 5 of 12 Attorneys for Pulaski County Special School District CERTIFICATE OF SERVICE I hereby certify that on November 16, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to the following:  Clayton R. Blackstock cblackstock@mbbwi.com  Mark Terry Burnette mburnette@mbbwi.com  John Clayburn Fendley , Jr clayfendley@comcast.net,yeldnef@yahoo.eom  Christopher J. Heller heller@fec.net,tmiller@fec.net,brendak@fec.net  M. Samuel Jones , III sjones@mwsgw.com,aoverton@mwsgw.com  Stephen W. Jones sjones@jlj.com,linda.calloway@jlj.com  Philip E. Kaplan pkaplan@williarnsanderson.com,nmoler@williamsanderson.com  Office of Desegregation Monitor andreeroaf@odmemail.com,aroaf@seark.11et1paramer@odmemail.com  Scott P. Richardson scott.richardson@arkansasag.gov ,agcivil@arkansasag.gov ,danielle. williams@arkansasag .gov  John W. Walker johnwalkeratty@aol.com,1orap72297@aol.com.,jspringer@gabrielmail.com 5 I ,I Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 6 of 12 . ' . / I certify that on November 16, 2007, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Postal Service to the following non CM/ECF participants: Judge J. Thomas Ray U.S. District Courthouse 600 West Capitol Avenue, Suite 149 Little Rock, Arkansas 72201 Isl M. Samuel Jones. III M. Samuel Jones, III Arkansas Bar No. 76060 Attorneys for Pulaski County Special School D,i stric' t MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODY ARD, P.L.L.C. 425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 (501) 688-8800 FAX: (501) 688-8807 E-Mail: sjones@mwsgw.com 6 Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 7 of 12 EXHIBIT A Case 4:82-cv-00866-WRW Document 4164 - J LAW OFFICES Filed 11/16/2007 Page 8 of 12 . } MITCHELLWILLIAMS SELIG  GATES  WOODYARD  PLLC M, SAMUEi. JONES, Ill DIREC't' PIAI.I sot C181-811 t 2 11:.,.MAILI a.JONll:8@MWSAW,COM VIA FACSIMILE and U.S. MAIL Mr. John Walker John Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 Re: PCSSD FaciHties Dear John: LITTLE ROCK  ROGERS September 7, 2007 429 Wll!\"aT CAP'ITOL AVCHUlt Bun t aoo UTTLIC FIOCK1 ARICA.HWA  7220t-382.1S Tl!Ll:~HONa: 801 888,.8800 FM BO 1-8888807 It is my understanding that the PCSSD has placed under contract 60.406 acres adjacent to the current Maumelle Middle School for the likely construction of a high school to replace the cunent Oak Grove High School facility. I say \"likely\" because the District is currently conducting the appropriate studies to confirm the suitability of the site for school construction. Pursuant to Section H-3 of Plan 2000 l am submitting this letter to give you the infonnation Plan 2000 requires, The facility, if constructed, would simply be the high school for the current Maumelle Middle School and its student body. You will recall that the Maumelle Middle School was constructed several years ago to replace Oak Grove Junior High School. There would be no proposed changes in geo codes or assignment areas to my knowledge. Stated another way, the new high school would serve the identical area currently served by the old Oak Grove High School and the same students who currently matriculate rrom Maumelle Middle School to Oak Grove High School would instead attend a new high school next door to them. Cas~ 4:82-cv-00866=W,RW Document 4164 Filed 1}1\\612007 Page 9 of 12 a MITCHELL WILLIAMS W, SELIG GATES WOODYARD PLLC Mr. John Walker September 7, 2007 . Page2 Since no geo codes would be affected and the \"area\" would remain the same, the re location of the school should not have any impact on the racial makeup of the new high school or any of the feeder schools. I do not yet know if \"capacity\" has been studied or detennined. I am confident it will be sufficient to serve the existing student ~ody and it may be planned for some anticipated growth as well. Early next week I intend to ask for arid furnish to you copies of the actual contracts . including legal descriptions of the property and I wiJl ask about capacity and furnish any additional infonnation to you. If you have any questions, please do not hesitate to call. MSJ:ao cc: Honorable William R. Wilson Honorable J. Thomas Ray Mr. James Sharpe Dr. Brenda Bowles Cordially yours, MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODYARD, P.L.L.C . . Samuel Jones, Ill Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 10 of 12 EXHIBITB QCT.22,2007 10:38AM JOHN W WALKER PA Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 JOHN W. WAUUJR SHAWN CHILDS Mr. M Samuel Jones Mitchell Williams 425 Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 Re: PCSSl\u0026gt; Dear Sam: JOHN W. WALKER, P.A. A'rJ'OP.NEY Arr LAW 1728 BMADWAY LlTTLB nooK, ARKANBAfl 72206 TE:LEPHONB (501) 874-3758 FAX (501) 874-4187 Email: johnwalkeratty@aol.com October 22, 2007 N0.393 P.2 Page 11 of 12 OPOOUNSEL !'!.OBERT McHENR'fi,F.A, DONNA J. McHENRY 8210 HiNlllill$0tl ROAD LrrTU!: ROCI$. ARlCANSAS 'ra310 PRON\u0026amp;: ceot) S'lll-3426  PAX (601) 372,8428 Elllllll: mehen:yd@lswbell.net l write to oppose location of the proposed school in the Maumelle community. There are at least two reasons for Joshua's opposition. First. there is a pending proposal for deannexation of tenitory from PCSSD relating to the Jacksonville effort. There has not been an impact study or any other writing prepared regarding Jacksonville's possible, if not likely, withdrawal. Nor has there been a study to assess the burdens upon African American students who will still need a place to attend school. Will the proposed school increase travel times beyond the Sffl Circuit limit? What benefits will flow to all Afiican American students from the site_ i. e.,, is it an educationally sound or financial feasible plan. Second. PCSSD represents that it is on the verge of financial calamity. Where then or how will this matter be financed? And in face of the declining quality of e\u0026gt;ther schools in poorer, more African American communities in PCSSD, what would be the relative physical equality between the schools. I can not approve the Taj Malull approach for the schools planned for Chenal and Maumelle while the other schools are left \"separate and unequal.\" Not even~ would condone that. Finally, in view of the district's diSDlBl record with meeting its agreed upon desegregation obligations, I, by copy of this letter, request that the ODM make an appraisal of your plans before you go further. There is no motion pending. Accordingly. like you. I copy the Court. 10/22/2007 MON 11:08 [TX/RX NO 5126) ~002 OCT.22.2007 10:39AM JOHN W WALKER PA N0.393 P.3 Case 4:82-cv-00866-WRW Document 4164 Filed 11/16/2007 Page 12 of 12 JWW:js co: Judge Andre Roa( Office of Desegregation Monitoring Honorable Judge William \"Bill\" Wilson 10/22/2007 MON 11: 08 [TX/RX NO 5126 J ~ 003 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, November 16, 2007 3:48 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Response to Motion This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. Notice of Electronic Filing U.S. District Court Eastern District of Arkansas The following transaction was entered by Jones, M. on 11/16/2007 at 3:48 PM CST and filed on 11/16/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document Number: 4164 Docket Text: RESPONSE to Motion re [4162] MOTION for Order Regarding PCSSD's Plans filed by Pulaski County Special School District. (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mbumette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, trniller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 2/12/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original fllename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l 1/16/2007] [FileNumber=1040280- 0] [ 43c60fl 4 f20a88b061 0e3fc3b6a621dce2ad2aff846373c8be0a883b40695ec2b9 72e4494ca50494a907605acf92d943a797cf312318914a541b0f0b132ecc82]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4165 Filed 11/16/2007 Page 1 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 DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM IN SUPPORT OF PCSSD'S RESPONSE TO MOTION PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS This response incorporates Rule 57 of the Federal Rules of Civil Procedure to the extent declaratory relief might be appropriate under these circumstances. Indeed, as explained in the PCSSD respon~e\\o the Joshua motion, on November 15, 2007, the PCSSD was informed by the sellers of the Maumelle property that they were exercising their right to schedule closing which they have now done specifying that closing should occur on or before December 15, 2007. Hence, the PCSSD is replying to the untimely Joshua motion on the day it was received. Contrary to the assertions of Joshua, ODM review and participation is not required under current circumstances. While it is absolutely true that the ODM is to monitor compliance with the parties' desegregation plans, there is nothing to \"monitor\" here beyond the simple question of did the PCS SD provide the notice of its school construction and site acquisition plans as required - by Plan 2000? The answer is clearly \"yes\" and is answered by the PCSSD letter to Joshua dated ., ' September 7, 2007, copies of which were mailed to the Comt and to the ODM. Joshua Case 4:82-cv-00866-WRW Document 4165 Filed 1111612007 Page 2 of 4 - acknowledges that it did not respond or \"comment\" until October 22, 2007, or far beyond the 14 day \"window\" for comment the parties agreed to in Plan 2000. Indeed, on October 25, 2007, the Court by letter directed Joshua to file a motion if it wished to pursue this matter. While this Court acted within three days, Joshua delayed another 22 days before serving a motion that, given its content concerning the site issue, could have been prepared and served by October 26, 2007. Accordingly, it is respectfully submittec,. l that.the Court should summarily and ' expeditiously enter its order denying at least that portion of Joshua's motion dated November 16, 2007, which would in any way delay the orderly process and the closing now scheduled for the new Maumelle school site which will host students currently attending Oak Grove High School. Respectfully submitted, MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODYARD, P.L.L.C. 425 West Capitol Avenue, Suite 1800 Little Rock, Arkansas 72201 (501) 688-8800 FAX: (501) 688-8807 Isl M. Samuel Jones. III M. ~~uel Jones III (76060) E-mail: sjones@mwsgw.com Attorneys for Pulaski County Special School District 2 Case 4:82-cv-00866-WRW Document 4165 r Filed 11/16/2007 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that on November 16, 2007, I electronically filed the foregoing with the Clerk of Comt using the CM/ECF system, which shall send notification of such filing to the following:  Clayton R. Blackstock cblackstock@mbbwi.com  Mark Terry Burnette mburnette@mbbwi.com  John Clayburn Fendley, Jr clayfendley@comcast.net,yeldnef@yahoo.com  Christopher J, Heller , heller@fec.net,tmiller@fec.net,brendak@fec.net  M. Samuel Jones , III sjones@mwsgw.com,aoverton@mwsgw.com  Stephen W, Jones sjones@j Ij .com,linda.calloway@j lj .com  Philip E. Kaplan pkaplan@williamsanderson.com,nmoler@williamsanderson.com  Office of Desegregation Monitor andreeroaf@odmemail.com,aroaf@seark.net,paramer@odmemail.com  Scott P. Richardson scott.richardson@arkansasag.gov,agcivil@arkansasag.gov,danielle.williams@arkansasag .gov  John W. Walker johnwalkeratty@aol.com,lorap72297@aol.com,jspringer@gabrielmail.com 3 .... Case 4:82-cv-00866-WRW Document 4165 Filed 11/16/2007 Page 4 of 4 I certify that on November 16, 2007, I mailed the foregoing document and a copy of the Notice of Electronic Filing (NEF) by United States Pqstal Service to the following non CM/ECF participants: Judge J. Thomas Ray U.S. District Courthouse 600 West Capitol Avenue, Suite 149 Little Rock, Arkansas 72201 Isl M. Samuel Jones, III M. Samuel Jones, III Arkansas Bar No. 76060 Attorneys for Pulaski County Special School District MITCHELL, WILLIAMS, SELIG, GATES \u0026amp; WOODY ARD, P.L.L.C. 425 WtjstCapitol Avenue, Suite 1800 Littl~ Rock, Arkansas 72201 (501) 688-8800 FAX: (501) 688-8807 E-Mail: sjones@mwsgw.com ; I 4 Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, November 16, 2007 3:52 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Brief in Support This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Jones, M. on 11/16/2007 at 3:51 PM CST and filed on 11/16/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Pulaski County Special School District WARNING: CASE CLOSED on 01/26/1998 Document Number: 4165 Docket Text: BRIEF IN SUPPORT filed by Pulaski County Special School District re [4164] Response to Motion (Jones, M.) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 2/12/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=ll/16/2007] [FileNumber=1040298- 0] [9975d85bb0bb56dd7036917b51541907475265f5252ebc71a4afd66ef56387ea8b b5al725fdb847645485e450e017f42120b153c45defdc50b065a14cdd8c067]] 2/12/2008 Case 4:82-cv-00866-WRW Document 4166 Filed 11/16/2007 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866-WRW IJTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS Joshua's Motion for Order Regarding PCSSD's Plan (Doc. No. 4162) has been carefully reviewed, and is DENIED. IT IS SO ORDERED this 16th day ofNovember, 2007. Isl Wm. R.Wilson,Jr. UNITED ST ATES DISTRICT JUDGE Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Friday, November 16, 2007 4:18 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Order on Motion for Order This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. Notice of Electronic Filing U.S. District Court Eastern District of Arkansas The following transaction was entered on 11/16/2007 at 4: 17 PM CST and filed on 11/16/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4166 Docket Text: ORDER denying [4162] Motion for Order Regarding PCSSD's Plan. Signed by Judge William R. Wilson, Jr on 11/16/07. (dac) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com 2/12/2008 John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 - Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l 1/16/2007] [FileNumber=1040407- 0] [00b62beb01e411a5c248clla289b93447clb58a6145cf85d7875f7ed062ea7d27a blfdlf0e07f249f867e9727714633d8522blf04690a724d157895426299627]] 2/12/2008 Page 2 of2 Case 4:82-cv-00866-WRW Document 4168 Filed 11/19/2007 Page 1 of 1 JOHN W. WALKER, P.A. ATIORNEY AT LAW 1723 BROADWAY 1rITLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 JOHN W. WALKER SHAWN CHILDS Email: johnwalkeratty@aol.com Honorable Judge William R. Wilson United States District Court 500 West Capitol, Suite 0444 Little Rock, Arkansas 72201 November 19, 2007 OF COUNSEL ROBERT McHENRY, P.A. DONNA J. McHENRY 8210 HE:-IDERSON ROAD LITIU: ROCK, ARKA.~SAS 72210 PHo:,iE: (501) 372-3425  FAX (501) 372-3428 Email: mchenryd@swbell.net Re: Little Rock School District v. Pulaski County School District, et al. Case No. 4:82CV822 Dear Judge Wilson: My letter/motion to you dated October 5, 2007 contai11ed an error regarding Joshua's response time to NLRSD's Petition dated September 21, 2007. This request should have been until December 20, 2007 rather than November 20, 2007. See page 15 ofNLRSD's brief May the Court's order of October 25, 2007 be amended to reflect December 20, 2007 as the due date ofJoshua's resposne? Thank you for your consideration. JWW:js cc: Other Counsel of Record Office of Desegregation Monitoring Page 1 of2 polly From: ecf _ support@ared. uscou rts.gov Sent: Monday, November 19, 2007 9:40 AM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Motion to Extend Time This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered by Walker, John on 11/19/2007 at 9:40 AM CST and filed on 11/19/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Lorene Joshua WARNING: CASE CLOSED on 01/26/1998 Document Number: 4168 Docket Text: MOTION to Extend Time For Response to NLRSD's Petition for Declaration of Unitary Status and Release from Court Supervision by Lorene Joshua (Walker, John) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Mark Terry Burnette mburnette@mbbwi.com John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones , III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com 2/12/2008 Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle.williams@arkansasag.gov Page 2 of2 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original ftlename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l 1/19/2007] [FileNumber=1040773- 0] [436ee87e1261b6e599e7393c50e7a0e7ab7a4f8a282951calc6eb4fd268a693631 al 4b7fl 6099d93 8d3c64936c65694bf6691 c0ec241aaaf6884eddfe9750620]] 2/12/2008 . ,, Page 1 of2 polly From: ecf_support@ared.uscourts.gov Sent: Monday, November 19, 2007 10:30 AM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Order on Motion to Extend Time This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents ftled electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 11/19/2007 at 10:29 AM CST and filed on 11/19/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: WARNING: CASE CLOSED on 01/26/1998 Document Number: 4169(No document attached) Docket Text: (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting [4168] Joshua's Unopposed Motion to Extend Time to File Response. Accordingly, Joshua's response must be filed by 5 p.m., Thursday, December 20, 2007. Signed by Judge William R. Wilson, Jr on 11/19/07. (dmm) 4:82-cv-866 Notice has been electronically mailed to: Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com 11/19/2007 Mark Terry Burnette mburnette@mbbwi.com - John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 11/19/2007 Page 2 of2 l(Je, '/170 ARKAN SAS DEPARTMENT OF Or. T. Kenneth James, Commissioner .Educatilf n 4 State Capitol Mall  Little Rock, AR 72201-1071 (501) 682-4475 http://ArkansasEd.org November 28, 2007 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Office of Desegregation Monitoring One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones III RECE VEIJ NOV~ 2007 OFF/Cf OF DESEGREGATION MONITORING Mitchell, Blackstock, Barnes, Wagoner, Ivers \u0026amp; Sneddon Mitchell, Williams, Selig, Gates \u0026amp; Woodyard 425 West Capitol Avenue, Suite 1800 P. 0. Box 1510 Little Rock, AR 72201 Little Rock, AR 72203-1510 RE: Little Rock School District v. Pulaski County Special School District, et al. US. District Court No. 4:82-CV-866 WR W Dear Gentlemen: 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 November 2007 in the above-referenced case. If you have any questions, please feel free to contact me at your convenience. Siu;iiA ~~:1mith General Counsel Arkansas Department of Education SS:law cc: Scott Richardson, Attorney General 's Office STATE BOARD OF EDUCATION: Chair: Diane Tatum, Pine Bluff  Vice Chair: Randy Lawson, Bentonville Members: Sherry Burrow, Jonesboro  Jim Cooper, Melbourne Dr. Calvin King, Marianna  Dr. Tim Knight, Arkadelphia  Dr. Ben Mays, Clinton MaryJane Rebick, Little Rock  Dr. Naccaman Williams, Springdale An Equal Opportunity Employer UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. LR-C-82-866 WRW 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 AD E's Project Management Tool for November 2007. Respectfully Submitted, 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 November 28, 2007, 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. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 West Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72206 Mr. Mark Burnette Mitchell, Blackstock, Barnes Wagoner, Ivers \u0026amp; Sneddon P. 0 . Box 1510 Little Rock, AR 72203-1510 Office of Desegregation Monitoring One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 West Capitol, Suite 3400 Little Rock, AR 72201 Mr. M. Samuel Jones, III Mitchell, Williams, Selig, Gates \u0026amp; Woodyard 425 West Capitol, Suite 1800 Little Rock, AR 72201 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION REC IVED NOV 3 O 2007 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 WRW \"PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENOR$ 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  . . . .:ducation (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. -  1MPLEMENTATION 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 November 30, 2007 ff 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. Page 1 of3 polly From: ecf_support@ared.uscourts.gov Sent: Wednesday, November 28, 2007 2:55 PM To: ared_ecf@ared.uscourts.gov Subject: Activity in Case 4:82-cv-00866-WRW Little Rock School, et al v. Pulaski Cty School, et al Notice (Other) This is an automatic e-mail message generated by the CM/ECF system. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. U.S. District Court Eastern District of Arkansas Notice of Electronic Filing The following transaction was entered on 11/28/2007 at 2:55 PM CST and filed on 11/28/2007 Case Name: Little Rock School, et al v. Pulaski Cty School, et al Case Number: 4:82-cv-866 Filer: Arkansas Department of Education WARNING: CASE CLOSED on 01/26/1998 Document Number: 4170 Docket Text: NOTICE Of Filing by Arkansas Department of Education of the ADE's Project Management Tool for November 2007.(mkf) 4:82-cv-866 Notice has been electronically mailed to: H. William Allen (Terminated) hwallen@allenlawfirmpc.com, njjackson@allenlawfirmpc.com Clayton R. Blackstock cblackstock@mbbwi.com Philip E. Kaplan pkaplan@williamsanderson.com, nmoler@williamsanderson.com Stephen L. Curry (Terminated) scurry@aristotle.net John T. Lavey (Terminated) jlavey@laveyandburnett.com, jsmith@laveyandburnett.com Philip K. Lyon (Terminated) pklyon@jljnash.com Christopher J. Heller heller@fec.net, brendak@fec.net, tmiller@fec.net 2/12/2008 M. Samuel Jones, III sjones@mwsgw.com, aoverton@mwsgw.com - Stephen W. Jones sjones@jlj.com, linda.calloway@jlj.com Richard W. Roachell (Terminated) rroachell@aol.com, schoollaw@msn.com William H. Trice, III (Terminated) btrice@hfc-law.com Page 2 of3 John W. Walker johnwalkeratty@aol.com, jspringer@gabrielmail.com, lorap72297@aol.com Mark Terry Burnette mburnette@mbbwi.com Sharon Carden Streett (Terminated) scstreett@comcast.net John Clayburn Fendley, Jr clayfendley@comcast.net, yeldnef@yahoo.com Will Bond (Terminated) will@mcmathlaw.com, tasha@mcmathlaw.com Mark Arnold Hagemeier (Terminated) rnhagemeier@uasys.edu, tsmith@uasys.edu Scott P. Richardson scott.richardson@arkansasag.gov, agcivil@arkansasag.gov, danielle. williams@arkansasag.gov Office of Desegregation Monitor andreeroaf@odmemail.com, aroaf@seark.net, paramer@odmemail.com 4:82-cv-866 Notice has been delivered by other means to: Timothy Gerard Gauger Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201-2610 James M. Llewellyn , Jr Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 William P. Thompson Thompson \u0026amp; Llewellyn, P.A. Post Office Box 818 Fort Smith, AR 72902-0818 The following document(s) are associated with this transaction: Document description:Main Document Original filename:n/a Electronic document Stamp: [STAMP dcecfStamp_ID=1095794525 [Date=l 1/28/2007] [FileNumber=1047366- 2/12/2008 0] [2ee7c37470f73a48aa9412a4ca14ae7496c4a9bc5a49d9e8f3a0016a088b93c22d e68b7ca7265aecae26alb8ba299eec5089d09c03013f9f31fdd94a1561aee3]] 2/12/2008 Page 3 of 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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