{"response":{"docs":[{"id":"bcas_bcmss0837_1776","title":"Responses concerning site selection at Maumelle, reduction of the Office of Desegregation Management budget, appellants' motion to hold appeal in abeyance, Pulaski County Special School District's (PCSSD's) motion to approve the re-design of Harris Elementary School and for the rezoning of the Harris and Sherwood attendance zones.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959","United States, Arkansas, Pulaski County, Maumelle, 34.86676, -92.40432"],"dcterms_creator":null,"dc_date":["2002-12"],"dcterms_description":null,"dc_format":["application/pdf"],"dcterms_identifier":null,"dcterms_language":["eng"],"dcterms_publisher":["Little Rock, Ark. : Butler Center for Arkansas Studies. Central Arkansas Library System"],"dc_relation":null,"dc_right":["http://rightsstatements.org/vocab/InC-EDU/1.0/"],"dcterms_is_part_of":["Office of Desegregation Monitoring records (BC.MSS.08.37)","History of Segregation and Integration of Arkansas's Educational System"],"dcterms_subject":["Little Rock (Ark.)--History--21st century","Education--Arkansas","School districts","Joshua intervenors","Office of Desegregation Monitoring (Little Rock, Ark.)","Education--Finance","Harris Elementary School (North Little Rock, Ark.)","Elementary schools","School integration","Little Rock School District","School attendance"],"dcterms_title":["Responses concerning site selection at Maumelle, reduction of the Office of Desegregation Management budget, appellants' motion to hold appeal in abeyance, Pulaski County Special School District's (PCSSD's) motion to approve the re-design of Harris Elementary School and for the rezoning of the Harris and Sherwood attendance zones."],"dcterms_type":["Text"],"dcterms_provenance":["Butler Center for Arkansas Studies"],"edm_is_shown_by":null,"edm_is_shown_at":["http://arstudies.contentdm.oclc.org/cdm/ref/collection/bcmss0837/id/1776"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":["Available for use in research, teaching, and private study. Any other use requires permission from the Butler Center."],"dcterms_medium":["judicial records"],"dcterms_extent":["64 page scan, typed"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e  \u003citem\u003e   \n\n   \n\n   \n\n\n   \n\n   \n\n\n   \n\n\n   \n\n   \n\n\n   \n\n   \n\n\n   \n\n   \n\n\n\n\n\n\n\n\n\n\n\n\n   \n\n \n\n \n\n \n\n\n   \n\n   \n\n   \n\n\n   \n\n  \n\n   \n\n\n   \n\n  \n\n   \n\n\n   \n\n \n\n\u003cdcterms_description type=\"array\"\u003e   \n\n\u003cdcterms_description\u003eDistrict Court, Joshua intervenors' response to motion regarding site selection at Maumelle and for other relief; District Court, Joshua intervenors' response to the reduction of the Office of Desegregation Management budget; Court of Appeals, appellants' motion to hold appeal in abeyance pending ruling by the District Court on the matter of recusal; District Court, plaintiff's response to the Office of Desegregation Management's 2002-2003 budget; Court of Appeals, plaintiff-appellee Little Rock School District (LRSD) response to appellant's motion to hold appeal in abeyance; District Court, Pulaski County Special School District (PCSSD) motion to approve the re-design of Harris Elementary School and for the rezoning of the Harris and Sherwood attendance zones; District Court, Pulaski County Special School District?s (PCSSD?s) reply to Joshua intervenors' response to motion regarding site selection at Maumelle and for other relief; District Court, order; Court of Appeals, Joshua intervenors' statement of issues and other documents    This transcript was create using Optical Character Recognition (OCR) and may contain some errors.    DNI\\IO!INOW NOl!V93H93S30 jQ 30HjQ RECEIVED lOOl 6- :BO JOHN W. WALKER, P.A. DEC - 9 2002 OFFICE OF C3J\\13,~3H DESEGREGATION MONITORING JOHNW. WALKER SHAWN CHILDS Mr. Christopher Heller . FRJDA Y, ELDREDGE \u0026amp; CLARK , 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Mr. Sam Jones A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKAl\\lSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 OF COUNSEL ROBERT McHENRY, P.A. December 6, 2002 DONNA J. McHENRY 8210 HENDERSON ROAD LITILE ROCK, ARK,INSAS 72210 PHONE: (501) 372-3425  F,1x (501) 372-3428 E~L4..IL: mchenryd@swbell.net Mr. Dermis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201. Nlr. Steve Jones JACK,LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 WRJGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building Mr. Richard Roachell ROACHELL LAW FIRM Plaza West Building 200 West Capitol Little Rock, Arkansas 72201 Re: LRSD v. PCSSD, Dear Counsel: 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 I Enclosed you will find Joshua Intervenors' Response to Motion Regarding Site Selecition at Maumelle and for Other Relief. JWW:lp Enclosure j IN THE l JNITED STATES DISTRJCT COURT\" ' --  ~ V   EASTERl\"J DISTRJCT OF ARKANSAS:~ .  WESTERl\"-J DIVISION  - --- LITTLE ROCK SCHOOL DISTRJCT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL _DISTRJCTNO.l, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL PLAINTIFF DEFENDANTS INTER VEN ORS ; INTER VEN ORS JOSHUA INTERVENORS' RESPONSE TO MOTION REGARDING SITE SELECTION AT MAUMELLE AND FOR OTHER RELIEF The Joshua Intervenors respectfully request the court to defer approval of middle school site pending a hearing. Joshua does not opposed the site for it is in keeping with the provision of the revised desegregation plan. Joshua concerns relate to the extent the racial balance can be assured, I the burdens which will be imposed upon the black student who \\,Vill be recruited to attend the school, the recruitment process which will be Ltsecl to recruit students from little rock and the ft.mping for the ! I school. I I ! Joshua notes that the current plan is dependent upon state funding (Arkansas Detartment of Education) under the majority to minority transfer provisions. The state is not invol:ved in this proceeding and has not indicted whether it will continue the majority to minority funding . Joshua wishes to be assured that the proposed school will remain desegregated pursuant to the Settlement Agreement and funher that the State may not later argue that it was not involved in these -1- - proceedings. Joshua is informed that the Office of Desegregation Monitoring is preparing a repo1i regarding issues associated with site selection, recruitment and other matters associated with opening a new school. J oslma therefore believes that the Court should solicit the ODM vievvpoints regarding the school as well as possible problems which may be associated with funding withdrawal by the State of Arkansas before the Court issues an Order as requested by the Pulaski. County Special School District. WHEREFORE, the Joshua Intervenors request that the State of Arkansas be info1med of ' these proceedings and be afforded an opportunity at least to express their future support or lack of I ' support of M to i\\11 funding so that that matter may be addressed, and appe~led if necessary, before final plans regarding site selection and school construction are approved. Joshua also requests that the Court direct the ODM to provide a response to the petition filed by the PCSSD before finalizing any order of approval. Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted. 7chiv\\:V. Walker, AR Bar No.!64046 ' .,.,. / I ,1 (),HNW.WALKERP.A. i -1723 Broadway i Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) -2- Rickey Hicks, AR Bar No. 89235 Attorney at LavY Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663 -9900 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing lws been sent by fa)f and U.S . Mail, postage prepaid to the fc 1lowing counsel ofrecord, on this_\u0026amp;.,_ day of -~ , 2002: Mr. ChTistopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Am1 Brown Marshall ODM One Uni.on National Plaza 124 West Capitvi, Suite 1895 Little Rock, AR 72201 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 7220 l Mr. De1mis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rocle Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROA CHELL LAW FIRM Plaza West Building 415 N. McKinley. Suite 465 Little Rock, Arkansas 72205 John '. Walker -3- DNNOllNOW NOllY03l!03S30 d030WO lOOl o 1 ::13 Q3Al3~3l:I RECEIVED DEC 1 O 2002 J. J / r.:. u.!.: ';..;-'- _ { '-\"' sT1::   0i.~rr,1r -,  omcE OF ,J Liii';fF6-'-- 1-- 1 -:-,-,. DESEGREGATION MON11ORIKG Dr::c -~' -'--~::2,1s C Q 9 2002 IN THE UNITED STATES DISTRJCT co#,.~s If: iFi:: .  EASTERN DISTRJCT OF ARKANSAS'------~':,., c:u:: ,--,,,. WESTERN DIVISION - --~ - 1  --:,.1 .. ~ - .t::. LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 WRW/ PULASKI COu1,ffY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. JOSHUA INTERVENORS' RESPONSE TO THE REDUCTION OF THE ODM BUDGET DEFENDANTS INTER VEN ORS INTER VEN ORS The Joshua Intervenors believe that the ODM budget should not be diminished in any way pending a determination that its role has to be substantially reduced. There are many unfinished tasks to be performed by the ODM and while there may be criticism of the ODM role and the past activity, there is no record basis for that criticism. We also note with concern that the Court anticil-iates reducing the role of ODM now that the Court has pa1tially released the Little Rock School District from further Court supervision. We note that that decision is on appeal. We also note that the ODM staff has already been materially reduced. We see no reason therefore for further reduction of the budget. We also question the necessity for the budget being reduced and request that the Court consider holding a hearing on the subject in the event that the Court is inclined to effectuate any budget reductions. Respectfully submitted, i  ' l Robert Pressman, Mass Bar No. 4 5 22 Locust A venue Lexington, MA 02421 (781) 862-1955 alker, AR Bar No. 64046 W. WALKER, P.A. . 1 723 Broadway Little Rock, Arkansas 72206 (501) 3 74-3758 (501) 374A 87 (Fax) Ri cey icks, Attorney at Law Evergreen Place 1100 No1ih University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 2 l - CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing h~been sen~ and U.S. Mail, postage prepaid to the fo,lowing counsel of record, on this t day of , , 2002: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 . Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union Nati0nal Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 ,, .J -- ------ Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK; LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM . Evergreen Place 1100 North University Little Rock, Arkansas 72207 M,. Michael E. Gans, Clerk United States Court of Appeals 111 South 10th Street St. Louis, MO 63102 Re: 02-3867 Little Rock School District v. Joshua Intervenors Dear Mr. Gans, 22 Locust Avenue Lexington, MA 02421 December 10, 2002 Herewith is the Joshua Intervenors' \"Appellants' Motion to Hold Appeal in Abeyance Pending Ruling by the District Court on the Matter of Recusal.\" Mr. Walker requested me to file this motion and to sign it for him. As indicated in the certificate of service, it will be provided to other counsel and the desegregation monitor by Fax and U.S. Mail. cc to other counsel, Ms. Marshall, and Mr. Walker Sincerely, ~G'~ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT APPEAL NO. 02-3867 LITTLE ROCK SCHOOL DISTRICT, V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. PLAINTIFF-APPELLEE DEFENDANTS INTERVENORS-APPELLANTS INTERVENORS Appellants' Motion to Hold Appeal in Abeyance Pending Ruling by the District Court on the Matter of Recusal The Joshua Intervenors, appellants in this appeal, respectfully move for the entry of an order holding this appeal in abeyance, pending the district court's ruling on a motion by the Joshua Intervenors seeking the recusal of the District Court (Hon. William R. Wilson, Jr.) pursuant to 28 U.S.C. Sec. 455 (b) (2). Intervenors also seek such other related relief. Intervenors-Appellants make the following allegations in support of this motion: 1. On September 13, 2002 the District Court ruled that the Little Rock School District had attained partial unitary status. 2. After the denial by the District Court of post-trial motions, these intervenors filed a notice of appeal on November 12, 2002. 3. On November 25, 2002, these intervenors filed in the District Court, pursuant to 28 u.s.c. Sec. 455(b)(2), a motion 1 seeking the recusal of the District Court and the vacating of all orders, rulings, and judgments entered by the District Court subsequent to its receiving assignment of this case on January 3, 2002, including the Memorandum Opinion and the Judgment which are the subject of this appeal. See Attachment (Items 3710-11); see also Items 3713-15. 4. On November 22, 2002, this court distributed a briefing schedule for this appeal. 5. This appeal could be affected by the motion in the District Court in multiple ways. For example, it could be mooted, if the District Court granted the motion. In contrast, if the District Court denies the motion, these Intervenors might well appeal that judgment -- and it would be in the interests of judicial economy for the recusal issue to be decided in this Court before the merits issue, which could be mooted by this Court's ruling on the matter of recusal. WHEREFORE the Joshua Intervenors respectfully pray that this Court enter an order: (a) holding this appeal in abeyance, pending the District Court's ruling on a motion by the Joshua Intervenors' seeking the recusal of the District Court; (b) requiring the Joshua Intervenors to inform this court of whether the District Court's ruling on recusal will prompt a further appeal by Joshua Intervenors, not later than 10 business days after the District Court's judgment on that issue becomes final; 2 (c) allowing the other parties in the case, whose counsel are - identified on the certificate of service, to inform this Court within the same time period whether the District Court's ruling on recusal will prompt an appeal by that party: and (d) granting such other relief as the needs of justice may require. ~e~-- Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Respectfully submitted, ~~w. w~ (~ RP) John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 Certificate of Service I hereby certify that this motion has been served by FAX and U.S. Mail on the following counsel and the Desegregation Monitor on December 10, 2002. Christopher Heller Friday, Eldridge \u0026amp; Clark 400 West Capitol Little Rock, AR 72201 Mr. Steve Jones Jack, Lyons and Jones 425 West Capitol Little Rock, AR 72201-3472 Ms. Ann Marshall Desegregation Monitor 124 West Capitol #1895 Little Rock, AR 72201 3 Sam Jones Wright, Lindsey \u0026amp; Jennings 200 West Capitol Little Rock, AR 72201 Mr. Richard Roachell Roachell Law Firm 415 N. McKinley, #465 Little Rock, AR 72205 Dennis Hansen Office of the Attorney General 323 center st. Little Rock, AR 72201 Robert Pressman U. S. District Court, Eastern District of Arkansas Page 1 of 245  . _. SEJ\\RCfl. . to.GIN SUGGESTIONS -:USER PREFS COURlWATCH HELP , .. ~ - . . - . RACER U.S. District Court Case Search Docket Sheet for 4:82-CV-866 U.S. District Court, Eastern District of Arkansas - Click here for Caption Page j Proceedings include all events Ct:-::.=..7.F:D.il:ea:dtJ e I DNooc.  II. I mage II D escrip tio n :===::;:=======:: 11/26/2002 3715 Yes: 1 Page(s): 21 KB; PDF :=========: ORDER by Judge William R. Wilson any party that wants to respond to Joshua's Motion to Recuse should file the response as soon as possible. In addition to any other matter any such party might want to address, I would beinterested in comments regarding the law clerk issue (cc: all counsel) [Date Entered: 12/02/02, By: de] B Yes: 7 Page(s); IVlliMORANDUM BRIEF by Littl_e Rock School in support 11/26/2002 3714 197 KB; PDF of response to Joshua's motion for vacating of orders and recusal [3713-1) [Date Entered: 11 /26/02, By: bm] ::=====: 11/26/2002 B3713 Y es: 3 Page(s); 41 the vacating of orders and recusal [3710-1) [3710-2) [Date RESPONSE by Little Rock School to Joshua's motion for KB; PDF Entered: 11/26/02, By: bm] :======: B NOTICE by Arkansas Education of filing of ADE's Project Yes: 3 Page(s); 36 11 /26/2002 3712 KB; PDF Management Tool for November 2002 [Date Entered: 11 /26/02, By: bm] !:=====: 1112512002 3711 Yes: 19 Page(s); of motion to recuse district judge [3710-1), of motion to B IVlliMORANDUM by Joshua intervenor plaintiff in support 721 KB; PDF vacate orders, rulings and judgments [3710-2) [Date Entered: 11/25/02, By: de] :=====~ B MOTION by Joshua intervenor plaintiff to recuse district Yes: .H...:Page(s); 11/25/2002 3710 290 KB; PDF judge, and to vacate orders, rulings and judgments [Date Entered: 11/25/02, By: de] 1:====~ ::::::========:~====================: B ORDER by Judge William R. Wilson the parties have to 1112512002 3709 Yes: 10 Page(s); and including 15 days from entry of this Order to file 240 KB; PDF objections regarding the proposed 2002-2003 budget of the ODM (cc: all counsel) [Date Entered: 11/25/02, By: de] 1:====~ :======~::========================:! [JI I DOCKETING LETTER: 8 USCA Number 02-3867; 11/25/2002 No counsel to proceed on appendix [Date Entered: 11/25/02, By: de] =======' ~=========:~===================~! nn ORDER by Judge William R. Wilson granting motion to Yes: 3 Page(s): 51 extend time to respond to PCSSD'S motion for approval of http ://www.are.uscourts.gov/wconnect/wc.dll?usdc_racer~get_casejb~4:82-cv-866~~All+Dc. .. 12/6/02 -- - -------- ------- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL  MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED DEC 12 2002 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS PLAINTIFF'S RESPONSE TO THE ODM'S 2002-2003 BUDGET The LRSD for its Response to the ODM's 2002-2003 Budget states: 1. It is the LRSD's understanding that the ODM's 2002-2003 budget covers the - period of July 1, 2002 through June 30, 2003. ODM's 2002-2003 was submitted to the Court on November 20, 2002 and provided to the parties by Order filed November 25, 2002. While the LRSD has concerns about the ODM's budget, the LRSD does not believe those concerns can be addressed in a fair and reasonable manner given that the budget cycle is almost half over. 2. The LRSD has two primary's concerns about the ODM's 2002-2003 budget. First, while the LRSD recognizes that the ODM has decreased its budget for 2002-2003, the LRSD being granted partial unitary status should permit the ODM to further decrease its staff. Staff salary and benefits constitute 86% of the ODM's budget. Additional staff reductions should permit the ODM to further reduce its budget for 2003-2004. 3. Second, the LRSD being granted partial unitary status renders inequitable the Court's Interim Order of June 27, 1989 apportioning the cost of ODM to the school districts on a per pupil basis. The LRSD proposes that the ODM be directed to work with the school districts to develop a more equitable means of apportioning the Districts share of the cost of ODM and to submit with its 2003-2004 budget a new means of apportionment. 4. The LRSD respectfully requests that Court direct the ODM to submit its proposed 2003-2004 budget on or before May 1, 2003 such that the Court may approve the budget before the 2003-2004 budget cycle. WHEREFORE, the LRSD prays that the Court enter an Order directing the ODM to consider additional staff reductions for 2003-2004; directing the ODM to work with the school districts and the State or Arkansas to develop a more equitable means of apportioning the cost of ODM and to submit with its 2003-2004 budget a new means a apportionment; and directing ODM to submit its proposed 2003-2004 budget on or before May 1, 2003. F:IHOME\\FENDLEY\\LRSD 2001 \\unitary-response-ODM-budget.wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol :~==--=--72-2_0_1__:-:3.~~4.4~93=-----/-, _V_ __\" '------\"_ ...._ 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on December 10, 2002: Mr. John W. Walker JOHNW. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:IHOME\\FENDLEYILRSD 2001 \\unitary-rcsponse-ODM-budgct.wpd 3 IN THE UNITED STATES COURT OF APPEAL FOR THE EIGHTH CIRCUIT RECEIVED OEC 1 3 2002 QfflC0F DRHI\\EGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF-APPELLEE V. APPEAL NO. 02-3867 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS INTER VEN ORS-APPELLANTS INTERVENORS  MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL PLAINTIFF-APPELLEE LITTLE ROCK SCHOOL DISTRICT'S RESPONSE TO APPELLANT'S MOTION TO HOLD APPEAL IN ABEYANCE Plaintiff-Appellee Little Rock School District (\"LRSD\") for its Response states: 1. This appeal should not be held in abeyance pending the District Court's ruling on the Joshua Intervenors-Appellants' (\"Joshua\") Motion to Recuse filed November 25, 2002. This is a case of substantial public importance which should be decided without undue delay. 2. The District Court has already indicated that it will not recuse based on the grounds asserted by Joshua. See Order filed October 29, 2002, attached hereto as Exhibit A.  Tfius ,' this appeal will not be rendered moot. 3. The \"interests of judicial economy\" would not be served by this Court deciding the recusal issue before the merits of this appeal. For the reasons set forth in the District Court's Order filed October 29, 2002, it is clear that 28 U.S.C.  455(b)(2) does not require the District Court to recuse. Consequently, delaying this appeal to allow this Court to first consider the recusal issues cannot be justified. If Joshua decides to appeal on the recusal issue, that appeal may be consolidated with this appeal for oral argument. The issues in the two appeals will be - completely different making it unnecessary for them to be briefed at the same time. Thus, \"interests of judicial economy\" would not be served by holding the this case in abeyance. WHEREFORE, the LRSD prays that Joshua's Motion be denied; that the LRSD be granted its costs and attorneys' fees expended herein; and that the LRSD be awarded all other just and proper relief to which it may be entitled. F:\\HOME\\FENDLEY\\unitary-appeal-responsc-mot-abey.wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Lilli~ (5~ B : C::::.:ller 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on December 12, 2002: Mr. John W. Walker JOHNW. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:IHOME\\FENDLEY\\unitary-appeal-responsc-mot-abcy.wpd 3 u.foilki~J?uAT EASTERN DISTRICT ARKANSAS UNITED ST ATES DISTRICT COURT . . EASTERN DISTRICT OF ARKANSAS OCT 2 9 2002 WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. Defendants MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER DENYING MOTION FOR HEARING REGARDING RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDINGS Intervenors Intervenors 1. On July 22 - July 24, 2002, an evidentiary hearing was held in this case on the issues raised by Little Rock School District's motion for unitary status. 2. On September 13, 2002, a memorandum opinion was entered which ruled upon the issue of unitary status. 3. Last Friday, October 25, 2002, Joshua Intervenors filed a Motion for Hearing Regarding Relevance of28 U.S.C. 455 to the Present Proceedings, raising two issues: a. Whether I should disqualify because approximately fifteen years ago I represented The Honorable Henry Woods, the presiding judge in this case at that time. This representation was in connection with a mandamus petition by the LRSD and Joshua Intervenors (the latter represented by Mr. Walker, among others); :,E. X,, HJ B I .,  .. b. Ms. Janet Pulliam, former counsel ofrecord for a party in this case,joined my staff on September 26, 2002, as a law clerk (she came aboard nearly two weeks after the September 13 Memorandum Opinion). 4. I will deal with the issue involving Ms. Pulliam first. From the outset, Ms. Pulliam has been kept completely separate from this case, and will be in the future. Attached as Exhibits A and B to this order are interoffice memos dealing with this issue. I believe they resolve this question. SERVING AS A LAWYER IN THE MATTER IN CONTROVERSY 5. I turn now to my representation of Judge Woods in the 1987 mandamus proceeding. LRSD and Joshua Intervenors filed a petition for a writ of mandamus, asking that the Eighth Circuit disqualify Judge Woods. LRSD v. PCSSD, 839 F.2dl296, 1301 (8th Cir. 1988). I entered the case, at that time, for the limited purpose ofrepresenting Judge Woods before - the Eighth Circuit in connection with the request that he be disqualified. Crucially important is the fact that the mandamus issues had nothing to do with the merits of the underlying case. The mandamus was argued orally before the Eighth Circuit (sitting in Little Rock) on November 3, 1987, and, two days later, the Court handed down its decision, denying the request for mandamus. The November 5 opinion, LRSD v. PCSSD, 833 F.2d 112, 113 (8th Cir. 1987), was very brief, and included this language: Another opinion will be filed in due course further explaining our reasons for the conclusions expressed today with respect to the election and disqualification matters, and addressing as well the other questions raised in these cases. I was shown as counsel of record \"for Judge Woods in mandamus\" in the November 5 decision. Thereafter, I had no further involvement. 2 6. The Eighth Circuit handed down a supplemental opinion on February 9, 1988,LRSD v. PCSSD, 839 F.2d 1296 (8 th Cir. 1988). In this opinion, the Court explained, in more detail, why the petition for mandamus had been denied in the November 5 opinion. I am not shown as counsel ofrecord in the February 9 opinion. 7. Actually, the answer to Intervenors' question appears in LRSD v. PCSSD, 833 F.2d 112. The court stated: [A] lawyer with whom Judge Woods once practiced appeared at one time for an amicus curiae in a case called Clark v. Board of Educ. of the Little Rock School Dist., No. LR-C-64-155. The District Court first consolidated Clark with the instant case, then later severed it and returned it to the docket of another judge. Disqualification is sought under 28 U.S.C.  455 (b)(2), which requires disqualification \"where in private practice ... a lawyer with whom [the judge] previously practiced law served during such association as a lawyer concerning the matter.\" We disagree with this argument. Clark was a closed case , or at most dormant, when it was consolidated with this one, and in any event it has now been severed. We do not think that such a fleeting and tenuous connection between the present case and the judge's partner's activities while in practice years ago, was intended by Congress to require recusal. Id. at 113. Likewise, my appearance fifteen years ago was brief (\"transitory''). I represented none of the parties, and, as stated above, the narrow recusal issue that I addressed on behalf of Judge Woods had nothing to do with the merits of the underlying case. 8. In United States v. DeTemple, 162 F.3d 279 (4th Cir. 1998), the Court held that the recusal of a district judge was not required when the judge, as a lawyer, represented a creditor of the defendant (in a bankruptcy fraud case) because the creditor's debt played no part in th~ defense or prosecution of the case. In other words, the key here is the phrase the \"matter in controversy.\" In United States v. Cleveland, 1997 WL 222533, * 11 (E.D. La. May 5, 1997), the Court stated: In this Court's view, a former representation should trigger the \"matter in controversy\" requirement if the issues with which it dealt are put \"in issue\" in the 3 subsequent case in the sense that they need to be resolved by the judge who is presiding over the subsequent case. If the judge need not resolve an issue that either she or her former partners were involved in, then there is no appearance of impartiality and the purpose of Section 455(b )(2) is satisfied. In reaching this conclusion, the district judge in Louisiana cited LRSD v. PCSSD, 839 F.2d 1296. WAIVER \u0026amp; ESTOPPEL 9. On top of the fact that my appearance in the case was brief and did not involve, in any way, any of the issues pending before me, a motion to disqualify me under section 455 would not be timely. On January 3, 1984, the Joshua Intervenors, represented by Mr. John W. Walker and Mr. Wiley A. Branton, Jr., filed a Petition to Intervene (docket no. 452). On April 23, 1984, Judge Woods entered an Order ( docket no. 4 70) denying Joshua's Petition to Intervene. On May 23, 1984, the Eighth Circuit entered an Order (docket no. 565) directing Judge Woods to grant Joshua permission to intervene as parties in this case. Thus, Mr. Walker was counsel ofrecord for Joshua before, during, and after the 1987 mandamus proceeding in which I appeared as counsel for Judge Woods. As the Ninth Circuit pointed out in E. \u0026amp; J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (91h Cir. 1992): It is true that under section 455 a judge may have an obligation to recuse himself or herself without a motion from one of the parties; it \"is self-enforcing on the part of the judge.\" However, it does not necessarily follow that a party having information that raises a possible ground for disqualification can wait until after an unfavorable judgment before bringing the information to the court's attention. It is well established in this circuit that a recusal motion must be made in a timely fashion. \"The absence of such a requirement would result in ... a heightened risk that litigants would use recusal motions for strategic purposes.\" While there is no per se rule that recusal motions must be made at a fixed point in order to be timely, . .. such motions \"should be filed with reasonable promptness after the ground for such a motion is ascertained.\" (Emphasis adde~.) (Citations omitted.) 4 10. On January 3, 2002, this case was assigned to me by random selection (docket no. 3570). At that time, Mr. Walker knew full well that, thirteen years earlier, I had represented Judge Woods in the mandamus proceeding that Mr. Walker, himself, helped initiate in an attempt to have Judge Woods removed from this case. See LRSD v. PCSSD, 839 F.2d at 1301 . Yet, it was only after my September 13, 2002 Memorandum Opinion ruling against Joshua on 5 of the 6 asserted grounds for denying unitary status that Joshua's lawyers chose to file the motion for a section 455 hearing. If there ever was a case of waiver and estoppel, this is it. I hasten to point out again, however, that even if Joshua had not elected to take a ''wait and see approach\" to deciding whether to file their section 455 motion, there would be no reason for me to recuse since I have never served \"as lawyer in the matter in controversy.\" 11. In Joshua's section 455 motion, there appears this curious language: The Court, in writing its Opinion dated September 13, 2002, included virtually all the citations from the Court of Appeals .. . hereto but did not refer to, mention or address these two important Opinions in which the Court, participated as a trial attorney in private practice. Motion at 3. One reading the above quoted language with a jaundiced eye might take it to suggest that I attempted to hide my 1987 representation of Judge Woods in the mandamus proceeding. I described the language as \"curious\" since, as noted, Mr. Walker was counsel of record for Joshua at the time and one of the moving parties who filed the petition for writ of mandamus. See LRSD v. PCSSD, 839 F.2d at 130 l. Thus, it is clear beyond peradventure that Mr. Walker knew of my being involved in this case on behalf of Judge Woods. For Joshua's benefit-- I will explain my reason for not citing these cases -- a reason much less sinister than Joshua may be suggesting: they had no bearing on - the unitary status issues that were decided in my September 13, 2002 Memorandum Opinion. 5 CONCLUSION 12. Since this Order fully sets forth my involvement in, and my knowledge of, the matters raised in Joshua's section 455 motion, there is no reason for a hearing, i.e., there is nothing material I could add to the above. And, in my opinion, I have fully answered the \"concerns\" of Joshua. 13. If and when Joshua's counsel obtain copies of the briefs I filed in connection with the mandamus issue, 1 I will be willing to look at the issue again if, and only if, these briefs reveal that my participation in the case was significantly different from my clear recollection. At that time, however, Joshua's counsel would be required to convince me that raising the question at this late date, after losing, was not for \"strategic purposes.\" 14. Joshua's pleading raises thequestionoftherelevance of28 U.S.C. 455 to the present proceedings. Answer: none. SUGGESTION 15. It is obvious that Joshua's counsel feel aggrieved by my September 13, 2002 Memorandum Opinion. I again commend the Eighth Circuit Court of Appeals to them. That Court has had a world of experience in hearing disappointed suitors. In fact, this is its forte. IT IS SO ORDERED this 7--1/ j tay of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE Wll)W)JLE ~ AND/OR 79(a~ ON ~f/!!?._~y~ 1My file has long since been destroyed. 6 \\ ij \\j'-' BILL ~ILSON JUDGE TO: DATE: RE: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 Facsimile (501) 604-5149 MEMORANDUM All Hands at 423 U.S. Courthouse September 30, 2002 LRSD case Janet Pu Ilium was, at one time, one of the attorneys for the Little Rock School District. So, she will not be involved in this case in any way whatsoever, directly or indirectly. EXHIBIT A .. , Kay Holt - 09/25/2002 1 U 3 AM Per Judge .. ... To: Mary Johnson/ARED/08/USCOURTS@USCOURTS, Christa Newburg/ARED/08/USCOURTS@USCOURTS, Valerie Glover/ARED/08/USCOURTS@USCOURTS, Christina Conrad/ARED/08/USCOURTS@USCOURTS cc: Subject: LRSD case When Janet comes on board we've got to put a Chinese wall between her and the LRSD case. She was involved in it at some point. EXHIBIT B EDWARD L . WRIGHT (1903-1977) ROBERT S. LINDSEY (1913-1991) ISAAC A. SCOTT, JR . JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F . COX , JR . TROY A. PRICE PATRICIA SIEVERS HARRIS JAMES M. MOODY. JR . KATHRYN A . PRYOR GORDON S. RATHER, JR . TERRY L . MATHEWS DAVID M. POWELL ROGER A. GLASGOW C . DOUGLAS BUFORO. JR . PATRICK J . GOSS ALSTON JENNINGS, JR . JOHN R. TISDALE KATH LYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY Ill LEE J . MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T. COLEMAN JAMES J . GLOVER EDWIN L. LOWTHER, JR. CHARLES L. SCHLUMBERGER WALTER E. MAY GREGORY T. JONES H. KEITH MORRISON BETTINA E . BROWNSTEIN WALTER McSPADDEN ROGER D. ROWE JOHN 0 . DAVIS JUDY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. United States District Court 600 West Capitol, Room 423 Little Rock, Arkansas 72201 -3325 200 WEST CAPITOL AVENUE SUITE 2300 LITTLE ROCK, ARKANSAS 72201-3699 (501) 371-0808 FAX (501) 376-9442 www . wlj .com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R . LINDSEY JAMES R . VAN DO VE R Writer's Direct Dial No . 501-212-1273 mJones@wlj .com December 16, 2002 J . MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J . SALLINGS WILLIAM STUART JACKSON MICHAEL 0 . BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C . TAO BOHANNON KRIS TI M. MOODY J . CHARLES DOUGHERTY M. SEAN HATCH J . ANDREW VINES JUSTIN T. ALLEN CHRISTINE J . DAUGHERTY , Ph .D. ' MICHELLE M . KAEMMERLING ERIKA ROSS SCOTT ANDREW IRBY HOLLY A . ADEE MICHELLE HARGIS DILLARD PATRICK 0 . WILSON Licensed to practice before the United States Patent and Trademark Office RECEIVED DEC 1 7 2002 OfACEOF DESEGREGATION MONITORJNG Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: Enclosed for the Court's review are courtesy copies of the PCSSD's motion as respects Harris Elementary School and the Harris and Sherwood area attendance zones. MSJ:ao Encl. cc/w/encl.: 385422-v1 Hon. J. Thomas Ray Mr. John W. Walker Mr. Dennis R. Hansen Mr. Christopher Heller Mr. Stephen W. Jones Ms. Ann Brown Marshall Mr. Richard Roachell Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP _/fL7P-- uam~ones, Ill IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. RECEIVED MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEC 1 7 2002 OFACE OF DESEGREGATION MONITORING PCSSD MOTION TO APPROVE THE RE-DESIGN OF HARRIS ELEMENTARY SCHOOL AND FOR THE REZONING OF THE HARRIS AND SHERWOOD ATTENDANCE ZONES PCCSD for its motion, states: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. After an exhaustive review and analysis, numerous community meetings and recommendations from the \"Harris Steering Committee\", the PCSSD proposes to revamp the curriculum at Harris Elementary, to designate it as a specialty school and to modify its attendance zones, primarily to reduce the busing burden borne by African American students. 2. Attached as Exhibit A is a narrative and statistical summary of the pro.posed modifications. The narrative includes the particulars of what is proposed, the reasons why, a description of the process followed to reach the recommendations, and a list of the parents, educators, Joshua representatives and others who comprise the - , Harris Steering Committee. 385142-v1 3. Exhibit B is a serial statistical depiction of the proposed student movement, the schools affected and the Geo Codes involved. 4. Attached as Exhibit C are maps depicting the current attendance zones and the proposed modifications. 5. The PCSSD believes that this plan and these changes present the District's best plan for ultimately desegregating Harris Elementary and for addressing needed changes in the described student assignment areas which, in most instances, have not been adjusted since 1989. WHEREFORE, the PCSSD prays that the Court approve its proposed re-design of Harris and the rezoning of the Harris and other Sherwood area attendance zones. 385142-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 By __ _,:;...-~----,,\u0026lt;-1===-------- 060) A aunty Special s 2 CERTIFICATE OF SERVICE On December f/4, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 385142-v1 3 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 -PROPOSED RE-DESIGN OF HARRIS AND REZONING  OF THE HARRIS AND SHERWOOD ATTENDANCE ZONE 2003-2004 November 12, 2002 Executive Summary During the February 12, 2002, Board Meeting the former Superintendent, Dr. Smith, told the Board that outdated attendance zones for Sherwood, Oa.kbrooke, Clinton, and Harris Elementary schools were causing lost enrollment and diminished housing development. He asked that the Board direct the Administration to proceed with steps necessary to bring a defined proposal for Board and court approval. As part of the plan, Dr. Smith asked the Board to approve planning, with community and staff input, for re-designing Harris Elementary, He said that preliminary plans for Harris included more computer technology, a renewed emphasis on academics plus more staff for physical education, music and art, a preschool class, and an extended-year program. The Board voted to undertake planning steps in compliance with the District's desegregation plan to develop attendance rezoning proposals and a re-design and reconstituting of Harris Elementary. To implement the re-design of Harris Elementary during the 2003-2004, it is necessary to have the program planned and to budget for some expenses during the2002-2003 school year. Background It has become necessary to rezone the Harris and Sherwood attendance zones to relieve the burden of busing borne by the black students in the McAlmont, Rixie, and Brushy Island community and white students in the Sherwood community. Students from these two areas have been bused since the beginning of integration in the Pulaski County Special School District. Desegregating Harris Elementary has been difficult because many Sherwood and Indian Hills communities have become more racially balanced to the point that busing is not as necessary. A special program with an acceptable theme has been planned for Harris Elementary. The purpose is to enhance the learning opportunities of black students attending this school and to attract whites that would volunteer because of the special programs offered at the school. Meetings were held on May 13, 2002, May 16, 2002, September 17, 2002, September 24, 2002, and November 4, 2002, to give parents and patrons the opportunity to have input into the process. The Harris Steering Committee was created from the co1mnunity meetings and met on October '14, 2002, October 21, 2002 and October 28, 2002 to help develop plans for the re-design of Hanis Elementaiy School. Representatives from the Office of Desegregation Monitoring, Joshua Intervenors, and PACT attended community and steering committee meetings. EXHIBIT 1 4 REZONING The consideration of maintaining racial balance in the Sherwood schools was done by reassigning students who live in Sherwood tci schools in that community. Tbis includes the students who live east of Hwy 167 in the Sherwood city limits. Proposed Sherwood school attendance zones meet the required 20% racial balance. Clinton Elementary Magnet also located in the Sherwood community meets the inter-district racial balance requirement, which is 50% black and 50% white. Black students who live in the Harris school community, which is comprised ofMcAlmont, Rixie, and Brushy Island, will be reassigned to Harris Elementary. The proposed reassignment of black students to Harris Elementary will increase the black student enrollment from 69% to 80% (see student enrollment data below from Pulaski County Special School District 2002 Quarterly Report). Harris will become a racially identified school with special programs to enhance learning. Harris Elementary Capacity 525 Current Black Population 117 69% Proposed Black Population 187 81% Current White Population 53 31% Proposed White Population 45 19% Total Enrollment 170 Total Enrollment 232 Clinton Elementary Capacity 833 Current Black Population 334 55% Proposed Black Population 316 55% Current White Population 273 45% Proposed White Population 257 45% Total Enrollment 607 Total Enrollment 573 Oakbrooke Elementary Capacity 500 Current Black Population 102 33% Proposed Black Population 156 39% Current White Population 207 67% Proposed White Population 244 61% Total Enrollment 309 Total Enrollment 400 Sherwood Elementary Capacity 460 Current Black Population 123 36% Proposed Black Population 171 43% Current White Enrollment 219 64% Proposed White Enrollment 230 57% Total Enrollment - 342 Total Enrollment 401 Sylvan Hills Elementary Capacity 456 Current Black Population 150 40% Proposed Black Population 126 37% Current White Population 227 60% Proposed White Population 219 63% Total Enrollment 377 Total Emollment 345 2 - PROBLEM DEFINITION The challenge in planning the program for Harris is four-pronged: 1. The specialty program should not duplicate any magnet program in Little Rock or specialty program in Pulaski County; 2. Designate Harris as a racially identifiable school; 3. The program must attract large numbers of white students; 4. The specialty program must attract black students in the Harris attendance zone. Those programs should provide: a. A focus on an enriched health and science curriculum b. Teachers trained in the sciences and technology c. Integrated technology d. An extended year program (YRE) e. Extended time opportunities for students f. Early childhood learning center g. Physical education and wellness Analysis of Alternatives The planning committee started the process by brainstorming about ways to attract students to Harris Elementary. The committee listed everything they believed should be offered. All ideas were discussed; prioritized ideas were researched. Recommendations The Planning Committee proposes the following recommendations for the Board's consideration: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. The overall focus should be an enriched health and science curriculum. Harris Elementary should be designated as a racially identifiable school. Harris Elementary should be officially designated as a specialty school. The program should be interdisciplinary . . An extended year program should be provided with academic intersessions. The facility must be well maintained and attractive. The District should explore ways that the labs, media center and gym could be opened after school and at night. The school must have access to state-of-the-a1i technology. A District pre-school class should be provided. The District should actively seek corporate, research, and community support for the program in addition to partnerships with the medical community at large. The District shall work beyond the elementary level to develop a plan for students' continuation of study. 3 I  12. There should be a strong recruiting and public relations program. 13. Extended time opportunities (before and after school hours) will be made available for students. 14. The program will partner with a District elementary school (majority white) to ensure that both student populations have opportunities for cross-cultural interactions. OBJECTIVE The objective of Harris Elementary Health and Science Specialty School is to provide a rich and challenging curriculum that will attract white students from outside the Harris attendance zone and maintain the students zoned for Harris. An attractive, safe school environment is a necessary component to accomplishing the objective. 4 HARRIS RE-DESIGN AND IMPLEMENTATION PLAN A. Program Planning Responsibility 1. Conduct community meetings Learning Services/Equity 2. Identify Harris Steering Committee Learning Services/Equity Members 3. Develop a Proposal to present to the Harris Steering Committee Board 4. Obtain Board support Learning Services/Equity 5. Submit the Proposal to the court Equity B. Program Implementation Pending Court Approval 1. Explore partnerships with the medical Learning Services community 2. Create job descriptions for the new Learning Services positions 3. Begin building renovations Support Services 4. Develop curriculum for the Health Learning Services Science Specialty Program 5. Order all equipment Learning Services 6. Develop recruitment plan Learning Services/Pupil Personnel 7. Recruit students Learning Services/Pupil Personnel 8. Post new positions Human Resources 9. Hire Harris staff under reconstitution Principal approach 10. Conduct curriculum inservices for the Learning Services/Staff staff Development/Principal 5 When May 2002-2003 Oct2002 Oct-Nov 2002 Nov 12, 2002 Dec 2002 Dec 2002-Mar 2003 Jan 2003 Jan 2003-Aug 2003 Jan 2003-July 2003 Feb-Mar 2003 Jan 2003 Feb-May 2003 April2003 Spring/Summer 2003 June-Aug 2002 HARRIS RE-DESIGN SUMMARY OF RECOMMENDATIONS 1. Staff a. Specifically hired for position b. Trained in health, science, and technology c. Science specialist d. Health/wellness/P .E.specialist e. Pre-K teacher/Pre-K Aide f. Nurse 2. Facilities a. Well-maintained and attractive b. Open after hours c. High tech d. Science Lab e. Health Fitness Center f. Early Childhood Center 3. Curriculum a. Interdisciplinary b. Enriched science and health curriculum aligned with state standards c. Integrated technology 4. Organization a. Year round education (YRE) b. Strong security c.  Extended day (before and after school) d. Community based 6 HARRIS RE-DESIGN ESTIMATED COST ANALYSIS District Estimated Cost Specialty Personal \u0026amp; Equipment Science Specialist . lFTE 49,313.00 Health/W ellness/P .E. Specialist lFTE 49,313.00 Nurse lFTE 40,000.00 PCSSD Early Childhood Center Start-up 11,000.00 PCSSD PK Teacher 1 FTE 49,313.00 PCS SD PK Aide 17,000.00 Head Start PK Teacher Head Start PK Aide Head Start - Start Up Year Round Education Principal 12 month contract 18,600.00 Intersession Teachers (15 days) 29,089.00 Transportation (15 days) 7,217.55 Utilities (15 days) 3,000.00 Bookkeeper 12 contract 2,141.00 Custodian 3,385.00 Extended Day Teachers after school 51,264.00 Teachers before school 8,544.00 Voyager Program 2,000.00 Utilities 15,000.00 Extended Day for 15 Intersession Days Intersession before school 480.00 Intersession after school 2,880.00 Technology Computer Lab (3 0 stations) Science Lab Totals 359,539.55 Other Funding Source Cost 25,000.00 25,000.00 14,000.00 78,000.00 10,000.00 152,000.00 Grants and other Sources of Revenue will be actively pursued to fund these programs. n1, c... c.. D... ), rc? V t\\- -- ,/,- c.1 o V,, }l)\\.i,\"' ,~ '- ,,,,.,. ..... ' \\ ~ ~ -t .J T V 7 \" . HARRIS RE-DESIGN - CAPITAL OUTLAY ESTIMATE Item Cost Roof 500,000.00 Sports Floor 50,000.00 Water Proof the Gym and Gutters 30,000.00 Electrical/Technology Upgrade 200,000.00 Structural Integrity 10,000.00 Renovate Bathrooms 20,000.00 Heating and Air 40,000.00 Flooring 50,000.00 Paint Interior of Buildings District Persom1el Spray Paint Interior of Gym District Personnel Total 900,000.00 - - 8 - Chris Young Stephanie J?onald Bobby Carey Cherrie Johnson Gwen Williams Horace Smith Delores Tate Johnnie Mass Val Marshall Joseph Taylor Ophelia J olmson Victor Roy Florence Lyons Mable Bynum Vicky Drake Ricki Bailey Linda Remele Karl Brown Brenda Bowles Shari 'Coston Carolyn Cooley Monica Bolden Deen Minton Harris Steering Conm1ittee 2002-2003 School School School School Board ODM Community Community Community (Parent) Community Community Community (Parent) Community Community Community (Parent) District District District District District Joshua Joshua (Parent) PACT 9 Proposed changes Harris-Sherwood Areas October 22, 2002 Harris students west of Hwy. 67 /167 Loss to Harris Black students 38 White Students 32 Total 70 Students east of Hwy. 67/167 Black White Total Loss to Sherwood Elem. 12 2 14 Loss to Oakbrooke Elem. 5 0 5 Loss to Clinton Elem. 16 17 33 Loss to Sylvan Hills Elem. 26 0 26 Loss to Cato Elem. 36 1 37 Loss to Adkins Elem. 11 4 15 106 24 130 Harris Elem. Gain 143 students Lose 70 students net gain 73 students Black 194 81 % White 45 19% Total 239 Dupree Elem. Gain 8 students Lose 0 students net gain 8 students Black 115 34% White 223 66% Total 348 Sherwood Elem. Gain 62 students Lose 14 students net gain 48 students Black 171 42% White 230 58% Total 394 Oakbrooke Elem. Gain 52 students Lose 5 students net gain 47 students Black 156 39% White 244 61% Total 400 Clinton Elem. Gain 2 students Lose 33 students net loss 31 students Black 316 55% White 257 45% Total 573 Sylvan Hills Elem. Gain O students Lose 26 students net loss 26 students Black 126 37% White 219 63% Total 345 Cato Elem. Gain 0 students Lose 37 students net loss 37 students Black 66 19% White 279 81 % Total 345 Adkins Elem. Gain 0 students Lose 15 students net loss 15 students Black 132 54% White 112 46% Total 244 EXHIBIT I STUDENTS IN HARRIS AND CONTIGUOUS ZONES (Without Integrative Transfers) ( east of Hwy 67-167) September 2002 Geo Codes B W 1501 1505 1510 1512 1515 1518 1521 1556 1557 1558 1559 1560 1561 1596 3730 3733 3755 3756 3757 3902 3940 3963 3975 0105 0141 0 4 7 5 2 0 11 21 15 0 13 15 4 1 7 5 5 12 5 6 0 11 9 14 22 Totals 194 81 % 0 2 5 0 0 4 4 0 0 0 1 4 6 0 0 Area in McAlmont 0 8 2 8 0 0 0 0 1 0 45 19% 239 total STUDENTS IN HARRIS LIVING IN SHERWOOD or JACKSONVILLE (West of Hwy. 67-167) September 2002 Geo Codes B W J acksonvi I le 3988 3989 3990 Totals Sherwood 0 2 0 2 2 0 4 6 South of Kiehl from Summitt to Hwy 1 07 1544 1555 1572 1573 1575 1594 1595 0 5 0 0 0 0 1 4 0 4 0 0 0 0 New Manson Rd. area Geo-code 48 0 To Jacksonville area school To Sherwood Elem East of 67 /167 in Sherwood City Limits Geo Codes 3730 3758 1525 0106 Totals B 0 1 1 0 1 66 w 2 0 0 6 16 To Sherwood Elem North of Kiehl east of Summitt to Hwy. 67-167 Geo Codes 1528 1531 1562 1563 1564 1565 1566 1567 1568 Totals B 4 0 0 0 1 3 2 0 0 32 w 4 1 0 0 3 0 7 1 1 20 Revised Geo-code 15-36 to Clinton Gap Creek/Austin Lakes 2 0 To Oakbrooke Elem Total 2 - Transfers out of Harris Elem for 2002-2003 September 2002 lntradistrict Transfers Harris area Harris area east of Hwy 67/167 west of Hwy 67 /167 Sherwood Elem. 1 2 Sylvan Hills Elem. 1 3 Oakbrooke Elem. 0 1 Cato .Elem. 0 6 Clinton Elem. 1  Totals 3 18 Integrative Transfers Sherwood Elem. 4 22 Sylvan Hills Elem. 0 9 Oakbrooke Elem. 2 47 Cato Elem. 0 0 Clinton Elem 1 ~ Totals 7 81 Grand Total 10 99 EXHIBIT C Current Attendance Zones and Proposed Modifications EDWARD L. WRIGHT (1003-1077) ROBERTS . LINDSEY (1'113 - 1'191 ) ISAAC A. SCOTT , JR . JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F. COX, JR . TROY A. PRICE PATRICIA SIEVERS HARRIS JAMES M. MOODY. JR . KATHRYN A. PRYOR GORDON S. RATHER, JR. TERRY L. MATHEWS DAVID M. POWELL 200 WEST CAPITOL AVENUE SUITE 2300 ROGER A. GLASGOW LITTLE ROCK, ARKANSAS 72201-3699 C. DOUGLAS BUFORD , JR . PATRICK J, GOSS ALSTON JENNINGS , JR. JOHN R, TISDALE KATHLYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY Ill LEE J, MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T. COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER, JR . CHARLESL. SCHLUMBERGER WALTER E. MAY GREGORY T. JONES H. KEITH MORRISON BETTINA E. BROWNSTEIN WALTER Mc:SPAOOEN ROGER 0 . ROWE JOHN 0 . DAVIS JUOY SIMMONS HENRY VIA HAND DELIVERY The Honorable Wm. R. Wilson, Jr. U.S. District Courthouse (501 ) 371-0808 FAX (501) 376-9442 www .wlj.com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R. LINDSEY JAMES R. VAN DOVER Writer's Direct Dial No. 501-212-1273 mjones@wlj.com December 18, 2002 600 West Capitol Avenue, Suite 360 Little Rock, Arkansas 72201 J . MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J. SALLINGS WILLIAM STUART JACKSON MICHAEL 0 . BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C. TAO BOHANNON KRISTI M. MOODY J, CHARLES DOUGHERTY\" M. SEAN HATCH J. ANDREW VINES JUSTIN T . ALLEN CHR ISTINE J. DAUGHERTY , Ph .D. MICHELLE M, KAEMMERLING ERIKA ROSS SCOTT ANDREW IRBY HOLLY A. ADEE MICHELLE HARGIS DILLARD PATRICK 0 . WILSON Licensed to praclice before the United States Patent and Trademark Office RECEIVED DEC 1 9 2002 OFFICE OF DESEGREGATION MONITORING Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: I enclose a courtesy copy of the PCSSD reply to Joshua's response to our Maumelle school site motion. The original has been filed and the parties served. Since I know that the Court will entertain precedents for orders, I enclose a proposed precedent for the Court's review. Thank you very much. Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP MSJ:ao Encl. cc/w/encl.: 6-~ 386128-v1 Honorable J. Thomas Ray All Counsel of Record IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED DEC 19 2002 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS PCSSD'S REPLY TO JOSHUA INTERVENOR$' RESPONSE TO MOTION REGARDING SITE SELECTION AT MAUMELLE AND FOR OTHER RELIEF The key provision of the Joshua response is the second sentence which states: \"Joshua does not opposed (sic) the site for it is in keeping with the provision of the revised desegregation plan.\" Accordingly, and because the acquisition and construction schedule could be compromised if a delay is too extensive, the PCSSD believes that an order should issue forthwith approving the site and reserving for future resolution the remaining issues raised by Joshua. The remaining issues, while important, should not hold hostage the simple matter of the site selected. For instance, Joshua professes to be concerned regarding racial balance, busing burdens and recruitment. The PCSSD went to considerable lengths in its motion to explain these issues. Its principal focus will be to recruit those elementary age children it has already recruited from Little Rock to Crystal Hill Elementary School. The same emphasis will be had at Pine Forrest and Oak Grove Elementary although their 383980-v1 numbers are much smaller. There is no reason to re-invent the wheel. The school will be desegregated if the PCSSD is even reasonably successful in recruiting AfricanAmerican children who have already volunteered to attend these elementary schools. As we explained in our motion, there will be no \"burden\" associated with transportation that does not already exist. The M to M students make a voluntary decision to transfer and volunteer to ride a bus from their neighborhood to these schools. The mere opening of a new middle school will not change this phenomenon. Further, it should be obvious that the PCSSD projections contained in the motion assume that the school will open at capacity. It will not. It will likely be several years before population growth takes it to capacity. Accordingly, by opening at substantially below its ultimate capacity, the numbers of minority students currently projected should result in an initial racial proportion that is far higher in minorities than that projected in the motion. The funding issue is more fundamental ; however, the state cannot simply unilaterally end funding, but would have to have the permission of this Court to do so. It is the position of the PCS SD that the 1989 settlement agreement contains no \"sunset\" provision regarding M to M funding and that it will therefore continue into perpetuity. Finally, the PCSSD seriously doubts that the ODM is preparing a \"report\". Be that as it may, the PCSSD has no reason to believe that the ODM will recommend against the site selected. Accordingly, as we noted at the outset, an order should issue forthwith approving the school site and reserving, if the Court desires to do so, any remaining issues for future resolution. 383980-v1 2 -- - -- - ----  Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 B _...,,....:::,__--'\u0026lt;------\":::.....,1=-'~-----nty Special CERTIFICATE OF SERVICE On December 18, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 383980-v1 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 M.Sa 3 - ---- - - - IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Pending before the Court is the PCSSD motion seeking approval of a middle school site to be constructed at the intersection of Murphy and Carnahan Drive in Maumelle, Arkansas. The motion is granted to this extent and the PCSSD is authorized to pursue purchase of the site and construction of the new middle school. Any and all other issues raised by any party as respects this matter are reserved for future disposition. 386131-v1 SO ORDERED this_ day of December, 2002. United States District Judge Wm. R. Wilson, Jr. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Pending before the Court is the PCSSD motion seeking approval of a middle school site to be constructed at the intersection of Murphy and Carnahan Drive in Maumelle, Arkansas. The motion is granted to this extent and the PCSSD is authorized to pursue purchase of the site and construction of the new middle school. Any and all other issues raised by any party as respects this matter are reserved for future disposition. 386131-v1 SO ORDERED this_ day of December, 2002. United States District Judge Wm. R. Wilson, Jr. AO 72A (Rev.8/82) IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 WRW/JTR PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, et al. MRS. LORENE JOSHUA, et al. KA THERINE KNIGHT, et al. RECEIVED DEC 2 3 2002 OFFICE OF DESEGREGATION MONITORING DEFENDANTS INTER VEN ORS INTER VEN ORS ORDER 1. Joshua lntervenors move to recuse me as the presiding Judge in this case under 28 U .S.C.  455(b )(2) and further ask me to vacate my Orders, rulings, and judgments in this case under Federal Rule of Civil Procedure 60(b)(6). See Motion for Recusal of District Judge and for Vacating of Orders, Rulings and Judgments ( docket no. 3 710). The recusal provision at issue reads, in pertinent part, as follows: (b) [Any judge, justice, or magistrate of the United States] shall also disqualify himself in the following circumstances: * * * (2) Where in private practice he served as lawyer in the matter in controversy ... . 1 Rule 60 on vacating Orders reads, in pertinent part, as follows: (b) On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final 128 U.S.C.  455(b)(2). A072A (Rev.8/82} 2. judgment, order, or proceeding for the following reasons: . . . ( 6) any other reason justifying relief from the operation of the judgment. 2 In my previous Orders,3 addressing Joshua Intervenors ' \"exploratory\" motions regarding recusal,4 I discussed most, if not all, of the points in Joshua Intervenors ' current recusal motion. Nonetheless, I will address those points again. 3. It appears to me that there are at least two dispositive answers to Joshua Intervenors' Motion for Recusal: a. My brief appearance, over a decade ago, as counsel for the Judge then presiding, the late Henry Woods, in a mandamus proceeding before the Eighth Circuit, touched neither the top nor bottom side of any of the issues that have been before me since I was assigned this case in January of this b. year. At the time I was assigned this case, Joshua Intervenors ' lead counsel knew or should have recalled my brief, isolated appearance 13 years ago, but posed no objection until after my September 13, 2002 decision on LRSD's Motion for an Immediate Declaration of Unitary Status. 2FED. R. C1v. P. 60(b)(6). 3See October 29, 2002 Drder Denying Motion for Hearing Regarding Relevance of 28 U.S.C.  455 to the Present Proceedings at docket no. 3695; November 12, 2002 Order Denying Motion for Extension of Time to File Notice of Appeal at docket no. 3701; November 12, 2002 Amended Order Denying Motion for Extension of Time to File Notice of Appeal at docket no. 3702; and November 12, 2002 Order at 3703. 4See Joshua's October 25, 2002 Motion for Hearing Regarding Relevance of 28 U.S.C.  455 to the Present Proceedings at docket no. 3693; and November 8, 2002 Motion for Extension of Time to File Notice of Appeal at docket no. 3700. -2- A072A (Rev.B/82) 4. In 1987, I represented Judge Woods before the Eighth Circuit in a mandamus proceeding initiated by LRSD, which sought to disqualify Judge Woods from presiding over this case. That mandamus action was a separate and distinct proceeding, involving separate and distinct issues, that were unrelated to the merits of the underlying school desegregation case. Thus, my brief role as Judge Woods' attorney in that long ago mandamus proceeding in no way constituted my serving as a lawyer \"in the matter in controversy,\" as that phrase is used in 28 U.S.C.  455(b)(2).5 Thus, I feel sure that 28 U.S .C.  455(b)(2) does not require my recusal. 5. Joshua Intervenors complain that, when I entered the case earlier this year, I failed to advise them of my long ago appearance on behalf of Judge Woods in that mandamus proceeding. They were not \"advised\" because they knew. Joshua lntervenors ' lead counsel, Mr. John Walker, was deeply immersed in this case in 1987, and has been continuously since then. After LRSD initiated the mandamus action against Judge Woods, Mr. Walker joined in seeking to have him removed from the case. This is reflected in the reported opinion,6 and is a matter of public knowledge. See Attachment A. 6. Mr. Walker avers that he forgot about my brief appearance in the case. The LRSD responds: The fact that counsel for Joshua \"forgot\" the Court's earlier representation ofJudge Woods perhaps provides the best evidence that the issues are unrelated. 7 51 also believe it is significant that, in representing Judge Woods, I was not acting as counsel for any of the parties in the underlying school desegregation case. 6See LRSD v. PCSSD, 839 F.2d 1296, 1301 (8th Cir. 1988). 7Memorandum Brief in Support of Plaintiffs Response to Motion for Recusal at 5. -3- AO 72A (Rev.8/82) Logic and common sense strongly support LRSD's argument. Furthermore, even accepting Joshua's counsel's statement that he forgot about my representation of Judge Woods, the Eighth Circuit has held that litigants \"choose counsel at their peril,\" and, therefore, the mistakes of counsel are imputed to litigants.8 In view of the certain knowledge of Joshua lntervenors' lead counsel of my involvement in the mandamus proceeding in 1987, it seems to me that the averred lack of knowledge on the part of his associate counsel is irrelevant. 7. In addition, Joshua 's Motion for Recusal is not timely. The Eighth Circuit has consistently required actions under 455(b) to be timely, and has subscribed to the view that \"motions to recuse should not 'be viewed as an additional arrow in the quiver of advocates in the face of . .. adverse rulings.\"'9 In affirming Judge Woods' decision not to disqualify, Judge Richard Arnold wrote: At the outset, we note the irony that most of the major parties to this litigation have at some point sought the removal of the trial judge. Not surprisingly, the parties have generally discovered grounds for disqualification at approximately the same time that the District Court has ruled for their adversaries on the merits. The recusal statute does not provide a vehicle for parties to shop among judges. 10 Mr. John Walker was counsel ofrecord for the Joshua Intervenors at their first appearance in this case back in 1984, and he has remained their counsel of record since that time. At the time ' 8See Inman v. American Home Furniture Placement, In c., 120 F.3d 117, 118-19 (8th Cir. 1997). 9 In re Kansas Public Employees Retirement System, 85 F.3d 1353 (8th Cir. 1996) (citation omitted). 10LRSD V. PCSSD, 839 F.2d 1296, 1302 (8th Cir. 1988). -4- AO 72A {Rev.8/82) I entered this case, Mr. Walker knew or certainly should have recalled that I had represented Judge Woods in the 1987 mandamus proceedings in which he joined with counsel for LRSD in seeking to disqualify Judge Woods from presiding over this case. Yet, only after an unfavorable result did Mr. Walker's memory become refreshed regarding my involvement in the 1987 mandamus proceeding, followed in short order by his decision to seek to have me recuse. The fact that Joshua's motion follows a ruling adverse to them renders the motion suspect as a litigation strategy. 11 The court \"cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge.\"12 8. In their Motion for Recusal, Joshua 's lawyers allege that I decided the merits of this case based on \"fealty and deference to Judge Henry Woods, the individual whose positions [I] was obligated to champion, when serving as an attorney in this case.\" 13 Joshua 's counsel seem to base this assertion on the following circumstances alleged in their motion: After the time that [I] represented Judge Woods in this case, Judge Woods expressed negative views on the fees for attorneys in the case, particularly the Joshua lntervenors .... In the opinion of September 13, 2002, [I] drew upon (at 43) and built upon (at 38-44) Judge Woods' conclusion about attorneys' fees, although recognizing that the matter was not directly relevant to the issue of unitary status ... (at 40). . . . It is reasonable to conclude that Judge Woods' views about attorneys' fees in this case had a greater influence on [me], after receiving assignment of 11 See United States v. Tucker, 82 F.3d 1423, 1425-26 (8th Cir. 1996). 121n re United Shoe Machine,y Co,p., 276 F.2d 77, 79 (1st Cir. 1960) (citation omitted). 13Motion for Recusal at 6. -5- AO 72A (Aev.8/82) this case, because [I] had earlier assumed an advocacy role for Judge Woods by representing him in this case. 14 My representation of Judge Woods in the mandamus action did not have even the slightest connection with the issue of attorneys' fees in this case. A reading of my September 13 Order in its entirety reveals that I criticize fees received by the entire professional group in this case, not just Joshua's counsel. 15 9. Regarding my employment of Janet Pulliam, 16 I fall in line with a recent decision of the Eleventh Circuit Court of Appeals. That Court, in Byrne v. Nez hat, 17 held that recusal was not required where a judge's law clerk had previously worked for a law firm representing one of the parties because the judge immediately isolated the law clerk from the case. Ms. Pulliam has been completely separated from this case at all times. She has not and will not have any connection with this case. 10. Finally, Joshua's counsel asserts that I \"held negative views about Mr. Walker's earlier role in this case\"18 and that I had \"an unfavorable image of [Mr. Walker] due to the court's 14Motion for Recusal at 5. 15lnterestingly, while this point appears to be lost on Joshua's counsel, they do concede that the concerns I expressed regarding the fees that have been paid to the professional group have nothing to do with the merits of LRSD 's Motion seeking unitary status. 16Joshua lntervenors have apparently abandoned this point because it is not raised in their Motion for Recusal. For the record, it should be noted that Ms. Pulliam began her employment with me several weeks after I entered my September 13, 2002 Memorandum Opinion ruling on LRSD's Motion for an Immediate Declaration of Unitary Stats. 17261 F.3d 1075 (] Ith Cir. 2001). 18See Joshua's Motion for Recusal at 6. -6- AO 72A (Rev.8/82) perception of his role regarding attorneys' fees. \" 19 Both of these purely speculative assertions are supported by no facts and are patently untrue. In my September 13, 2002 Memorandum Opinion (docket no. 3675), I expressly recognized that Mr. Walker \"has manned the barricades of civil rights litigation in Arkansas for over four decades and that he has a reputation for never yielding on matters of principle.\" Id. at 41. If at the time I entered that decision I held a \"negative\" or \"unfavorable\" image of Mr. Walker, as he alleges, I most certainly would not have paid him such a tribute. 11 . Joshua's Motion to Recuse is DENIED. Likewise, Joshua's request under Rule 60(b )(6) that I vacate my orders, rulings, and judgments in this case is DENIED since no valid reason justifying relief has been presented. ~ IT IS SO ORDERED this~O day of December, 2002. Wm. R. Wilson, Jr. UNITED ST ATES DISTRICT JUDGE THIS DOCUMl::1\\JT ENTEREO ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 ANC(!Q~~~:: ON !8'~-~y~ . ' 9See Joshua's Memorandum in Support of Motion for Recusal at 12. -7- JOHN W. WALKER SHAWN CHILDS Michael E. Gans, Clerk O. S. Court of Appeals JOHN W. WALKER, P.A. ATTORNEY AT LAW 1723 BROADWAY LITTLE ROCK, AR.KANSAS 72206 TELEPHONE (501) 374-3758 FA,'{ (501) 374-4187 December 22, 2002 111 South 10th Street - Room 24 . 329 St. Louis, MO 63102 Re : 02 - 3867 Little Rock School District v . Joshua Intervenors Dear Mr. Gans, OF COUNSEL ROBERT McHENRY. PA. DONNA J. McHENltY  8210 HENDERSON RO . .\\D LIITLE ROCK, ARK.-1.NS.\"8 72210 PHONE: (501) 372-3425  F.-\\X (501) 372-3428 ElvL-\\JL: mchenryd@swbell.net RECEIVED DEC 2 6 2002 OFFICE OF DESEGREGATION MONITORING This letter addresses several issues in connection with this appeal . Transcriots All t,ranscripts needed for this appeal had been prepared earlier for counsel's use in the District Court. Method of Preparation of Appendix The parties will submit separate appendices . Desianation of Record (Appellant) Joshua Intervenors ' designation is attached to this letter. Statement of Issues (Appellant) Joshua Intervenors' statement of i ssues is attached to this letter. cc Chris Heller (LRSD ) other counsel of record in the District Court Aoceal No . 02 - 3867 Little Rock School Dist. v. Joshua Intervenors Joshua Tntervenors ' Desianation of ~he Record (1 . ) docket entries :for the period f.::-om January 1, 1998 to date (2 . ) Exhibits 543 to 872 (e!'ld of list} (all exhibits are marked court exhibits) (3 . ) Pulaski County School Desegregation Case Settlement Agreement, March , 1989 (As Revised September 18, 1989) (4 . ) Joshua Opposition LO Little Rock Compliance Report , 6- 25 - 01 (5 . ) Order , 8- 20 - 01 ( 6 . ) Order 10-3 - 01 (7 . ) Response by LRSD, 10 - 5- 01 (8 . ) Order , 10-17-01 (item 3521) ( 9 . ) Ceder , 11-13-01 ( 10 . ) Order , 11-13 - 01 (1 1 . ) Order , 12 - 12 - 01 (12 . ) LRSD , Motion, Memorandum, and Statement of Facts Not in Dispute , 3- 15 - 02 (13 . ) Order, 5-7 - 02 (14 . ) Order , 5- 9- 02 ( 1 5 . ) Order , 5- 15- 02 ( 16 . ) Joshua Intervenors ' ( 1 7 . ) Order, 9- 12 - 02 ( 18 . ) Order, 10 - 11 - 02 ( 19 . ) Order, ll-12 - 02 Opposition, 5 - 30 - 02 (20 . ) t'1otice of Appeal, 11 - 12 - 02 (21 . ) transcripts Subst antive Hearinqs 7-5-01 7 - 6- 01 8-1 - 01 8-2 - 01 11-19-01 11-20- 01 7- 22 - 02 7 - 23--'02 7-24 - 02 Hearings on Procedural Matters 6- 29 - 01 7 - 9- 01 8 - 17 - 01 11-13- 01 12-11- 01 (22 . ) The Memorandum Opinion and Judgment, 9- 13- 02 and Order 10-11-02 Appeal No . 02-3867 Little Rock School Dist . v . Joshua Intervenors Joshua Intervenors' Desianation OT Tssues (1 . ) whether some of the District Court's findings of substantial compliance with the Revised Plan were induced by legal error in construing the Plan? (2 . ) whether the district court made clearly erroneous findings of fact regarding student discipline, steps to improve and remediate the academic achievement of African American students, participation in extracurricular activities and advanced and enriched courses, guidance and counseling services, and plan compliance ~t Central High School? ( 3 . ) whether the Revised Plan required that the LRSD show progress in eliminating the racial achievement gap in order to establish substantial compliance with the Plan? (4 . ) whether in the course of assessing the LRSD's compliance with the Revised Plan the District Court failed to employ monitor ing by the Office of Desegregation Monitoring (ODM) in the manner required by this Court in 1990? (5 . ) whether the District Court erred in holding the Joshua Intervenors to the requirement LDa~ they exhaust the Plan compliance remedies before they could contend thaL the LRSD did noL substantia~ly comply with a requirement of the Plan? ( 6 . ) whether the Distr~c~ Court er~ed in imposing an evidentiary burden on the Joshua Intervenors regarding Lhe Joshua monitoring activities prior to March 15, 2001?    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER DEFENDANTS INTERVENORS INTER VEN ORS Yesterday, Joshua Intervenors filed a Motion for Extension of Time to Respond to PCSSD's Motion for Approval of Middle School Site. The motion reports that PCSSD's counsel does not object to the requested extension. Joshua's request is GRANTED. They have up to and including November 19, 2002, in which to file a response to PCSSD's motion. IT IS SO ORDERED this~ day of November, 2002. Wm.R. Wi UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WIT~ ~Uj.E 58 AND/OR79~~ ON / 11 lj:, \"h BY__,,,.,,..~-- 3699 t= u.f t~,.e:o EASTERN Dts~,21 COURT n:.,., T ,\u0026lt;\\Ri\u0026lt;AJ\\JSAs NOV O 8 2002 JAMES I~/  By v,  iLfoCO!~~-vAc1, ~--~ \\ CLERK rn THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKAL\"\\JSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT PLArnTIFF V. CASE NO. 4:82CV00866 WRW/ PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. RECEIVED NOV 1.2 2002 OFACEOF DESEGREGATION MONITORING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL DEFENDANTS INTER VEN ORS INTER VEN ORS Come the Joshua Intervenors, by and through undersigned counsel, John W. Walker, P .A, and respectfully move the court for al?-_ extension of time for an additional thirty days in which to file Notice of Appeal to the final judgment entered herein on October 11 , 2002. For cause, Joshua respectfully states: 1. On October 25, 2002, the Joshua Intervenors filed a motion for hearing regarding the relevance of 28 U.S.C.  455 to the cunent proceeding. Therein, Joshua sought an evidentiary hearing in which to explore the relationship of the Court's previous role in this litigation to the current proceedings. The Joshua Intervenors sought the oppo11unity to develop a record regarding his honor's role in opposing recusal requests in this numbered case which were made by at least two of the parties regarding the late Honorable Henry L. Woods. 2. On October 29, 2002, the Court entered an Order \"denying\" the Joshua \"Motion for Hearing.\" Therein, the Comi inter alia indicated that it had \"represented\" Judge Woods \"approximately fifteen years ago ... .. \" in this mentioned case in co1mection with a mandamus petition by the Little Rock School Distiict and the Joshua Intervenors ( the latter represented by Mr. Walker among others). This Comi stated that \"the mandamus iss~es h-;;:d nothi~g-to- d; v~th the merits of the underlying case.\" 3. The Comi went on to say, as a finding of fact, that when the case was assigned to it that counsel John W. Walker \" ... lmew full well that, thirteen years earlier, I had represented Judge in the mandamus proceeding that Mr. Walker. himself. helped initiate.\" [ tmderlining represents the Court's emphasis] 4. The Comi later reemphasized the point that :tvfr. Walker was counsel of record for Joshua and one of the moving paiiies [the Court's emphasis] who filed the petition for wiit of mandamus. The Court went on to indicate that it would be willing to revisit the issue \"only if' the \"b1iefs\" the Court filed when in private practice differed from his \"clear recollection.\"  .,:, The Court also noted other concerns that it would address upon receipt and review of the \"briefs\" which he filed in this case on behalf of Judge Woods. 5. The Joshua Intervenors have retrieved from the Eighth Circuit archives and attach herewith one of what the Court Order implies is several \"briefs\" which it filed when in private practice in this numbered case. The Joshua Intervenors have requested the 8th Circuit Court Clerk for the docket entries in connection with the appeals. In that way, the Court can ascertain with certainity if the Court filed additional briefs while in private practice in the case herein. 6. Joshua also notes that its counsel, contrary to the findings of fact in the Order of October 29, 2002, which findings were underlined for emphasis, did not file a petition for the 2 Writ of Mandamus regarding the Judge Wood's recusal. In the opinion of the Court of Appeals decision which the Court cites as its support for the emphasized proposition, the Court noted at footnote 6: \"The Joshua Intervenors raise this-argument in the form of an appeal from the DistJ.ict Comi' s denial of their motion for recusal. LRSD brings this argument through a petition for Mandamus directed to this Court seeking an Order directing recusal, a petition suppo1ied here by the Joshua Intervenors. [ underlining for emphasis] 7. The Joshua Intervenors intend to request that the Court review its attached brief prepared while in private practice in this numbered case-as well as any other brief which it prepared in this case for any pmpose- and to then reconsider the facts which it found sua sponte in its Order of October 29, 2002. 8. In the event that the Comi reconsiders its Order of October 29, 2002, the Court may be - inclined to, at least, modify its earlier order and to afford the requested relief which is set forth therein. It is clear_ that some of the Court's findings regarding its role when in private practice are inconsistent with the findings of the Court of Appeals regarding the same matter. 9. The Joshua Intervenors intend to file a motion for recusal in the event that the Court itself refuses to recuse after it has reviewed the attachments hereto. 10. Notice of appeal is to be filed herein not later than November 11, 2002. The Court may extend such ruling upon a showing of good cause. Rule 4(a)(5)(A), Fed. R. App. Pro. Joshua believes that good cause exists in that there are umesolved questions for the Court to address regarding recusal. Good cause also exits because piece-meal appeals may otherwise be avoided. 3 11. There is no prejudice to the Little Rock School District if the request to extend the. time for filing notice of appeal is granted. \\VHEREFORE, premises considered and in the interest of having related matters proceed concurrently and in the interest of justice, the Joshua Intervenors respectfully request that they be allowed up to and including December 11, 2002 in which to file their notice of appeal. 1 \u0026lt;7 ' I i / I '  ,/ J/ i . / ,'f;\" /9--1\\ 1) ' j i / te_-!ld/h'.t;;,.:.J. .. , Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respect~y sub1~tted, , ) /  -~ ~i~i~L it/ /.i-tlig;ip- Jol:m .W. Walker, AR Bar No. 64046 JOHN w. w ALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 3 74-3758 (501) 37/187 (Fax) I .,. .- / I 0?1--- - _., ,/. r /,~-_  // ~.I.. ,\u0026gt;'\\ \\..._: I , .1{:'';.,, ,; ., ( .It\" ; Rickey Hicks, 11,R :Bar No. 89235 L . ) Attorney at aw~ :Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 4 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent v J a,-x and U.S. Mail, postage prepaid to the following counsel ofrecord, on this _j2 day of u,t,,9-,,,. , 2002: Nir. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201  Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 i...,: Nir. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building . Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 722 0 1-3 4 72 Mr. Richard Roachell ROA CHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 173 8 8 Little Rock, Arkansas 72222-7388 John w: Walker 5 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 87-2150 LITTLE ROCK SCHOOL DISTRICT, Appellant, vs. PULASKI COUNTY SPECIAL. SCHOOL DISTRICT NO. 1, et al. Appellees. IN RE: LITTLE ROCK SCH60L DISTRICT, PETITIONER Petition for Writ of Mandamus Directed To the United States District Court - for the Eastern District of Arkansas Honorab~e HENRY WOODS, Judge RESPONSE OF THE HONORABLE HENRY WOODS, UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, TO PETITION FOR WRIT OF MANDAMUS WM. R. WILSON, JR. Wilson, Engstrom, Corum \u0026amp; Dudley Post Offi9e Box 71 _ Little Rock, AR 72203  (501) 375-6453 Attorneys for Respondent STATEMENT OF THE CASE The Little Rock School District (LRSD) moved The Honorabl.e Henry Woods, United States District Judge for the Eastern District of Arkansas, to recuse himself on April 24, 1987. The Motion was denied on April 30, 1987. Almost four months after the Order denying recusal, the LRSD petitioned this Court for a Writ of Mandamus ordering Judge Woods to recuse. The LRSD bases its petition on newspaper clippings, a sua soonte show cause order, newspaper photographs of LRSD students and Judge Woods, the Judge's law clerk's trip to LRSD administrative offices to pick up a list of the names and school addresses o~ LRSD principals, alleged ~ parte co mmu n i cations , and a 1 et t e r from Ju d g e Woo d s to a for mer LRSD school board member. 1 ARGUMENT I. . THE LITTLE ROCK SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDAMUS MUST BE DENIED SINCE IT IS UNTIMELY. It is clear, beyond peradventure, that the issue raised by the Petition for Writ of Mandamus is \"keggy. 11 The district court entered its Order denying LRSD's Motion t o R e cu s e o n A p r i l 3 0 , l 9 8 7 , a n d i t w as n o t u n t i 1 A u gu s t 24, 1987, that LRSD filed the petition for a writ - - a delay of nearly four (4) months. This Circuit has held that an unsuccessful petitioner in a situation such as this can bring the question before the Court of Appeals by a Petition for a Writ of Mandamus. L i d d e.11 ~ B d . o f E d . o f C i t y o f ___~ L o u i s , 6 7 7 F . 2 d 6 2 6 (8th Cir . 1982). It is certain, however, that such a petition must be timely - - as it was not in the case a:t bar. I n co n s i de r i n g a n II a pp e a r a n c e of p a rt i a 1 i t y 11. i s s u e under Sec. 455(a), the 7th Circuit considered a petition which was filed several months after motions to recuse were denied . The Court held: .The Writ of Mandamus is the vehicle by which we may exercise our supervisory powers over the district courts with respect to Sec . 455(a).To require a timely pet.it ion. for a writ of mandamus for a sole remedy serves another important purpose: that\" of preventing injury to the public perception of the judicial system before it has a chance to occur. If a party is deprived of its substantial rights of a trial before an actually biased judge, the harm can be remedied (though not costlessly) by a new trial before an unbiased judge. But, the harm to the public's perception of the judicial system when a judge who appears to be biased proceeds in a case is much more difficult to correct. Prevention in such circumstances is clearly preferable to attempt to cure. Accordingly, we hold that when a judge denies a motion to disqualify himself under Sec. 455(a), the moving party's sole recourse is to apply to this court immediately for a Writ of Mandamus:' We, therefore shall not review Judge Warren's several denials of Balistrieri' s motions under Sec. 455(a) . (Emphasis supplied) . United States v. Balistrieri 779 F.2d 1191, 1205. (7th Cir . 1985). In U. S . v. Olds 426 F.2d 562 (3rd Cir. 1970), the district cou-rt granted a motion to modify and correct or vacate a sentence despite the fact that the motion was filed well beyond the 120 day limit set by Rule 35 of the Federal Rules of Criminal Procedure. Approximately three (3) months after the district court's order became effective , the Government petitioned the court of appeals for a writ of mandamus to compel the district judge to set aside his order modifying the sentence, The court declined to express an opinion on the propriety or legality of the questioned order, and denied the petition 11 because of the Government's unexcused tardiness in pursu_ing its challenge .n (426 F.2d at 565). The court held: ... There is no inflexible rule of timeliness and we hesitate to create any. Rather, the question in each case is whether und~r all the circum.stances the remedy was pursued with reasonable dispatch. While the appeal period is in no way controlling, we point out that Government appeals in criminal cases, when permitted, must be filed within thirty (30) days after the entry of the order appealed from . . I n .:th i s c a s e , th e G o v e r n m e n t waited nearly three (3) months before seeking relief in this. court. No excuse whatsoever has been suggested for its inaction . .   . In sum, we hold that by waiting nearly three (3) months before seeking relief in this court, thus permitting a material change in the Olds 1 status, the Government did not proceed with reasonable dispatch under the circumstances. 426 F.2d at 565-566. Since Judge Woods entered his written order denying 4 !1 I I ! I I I ~--1 I I I I I I 11/ Ol / U2 .L2 : HI t '.U 314244.2405 Cli.W'.l'IJJlil\u0026lt;ll%, recusal of April 30 1987, a number of substantive orders were entered in this case. On May 8 1 1987, the court entered an order which severed the Clark case from the consolidated school desegregations. The Joshua Intervenors have appealed from that order . The court entered a nineteen - page order on May 13, 1987 dealing with teacher assignments. The LRSD has appealed that order. A May 22, 1987 order regarding student assignments has been appealed by LRSD. The Co1.,1rt 1s order of May 26 regarding the assignment of ma~net teachers has been appealed by the Joshua Intervenors. The Joshua Intervenors have also appealed a June 16, 1 .9.87 order modifying the per pupil expenditure for magnet ... students. The Knight Intervenors have appealed the court's Ju l y 7, 1987 order clarifying the role of the Magnet Review Committee, and the July 8 order which permitted the Pulaski County Special School , District to recall black teachers affirmatively, so as to retain an acceptable level of black staff. No party has appealed the court 1s order of July 21, but that order authorized PCSSD to acquire the Ti mex f a cility and convert it into an elementary school. That co n version hes taken Judge Woods denied the motion to recuse orally on !pril 29 7 1987. place_ and the 11Daisy Bates Elementary 11 School is now operating. A July 27, 1987 order amended NLRSD's plan in order to deal with possible segregative effects of Arkansas Act 624 of 1 9 8 7 . 0 n A u gu s t 3 , 1 9 8 7 th e co u rt e n t e r e d a n or ct e r directing LRSD to show cause why it should not be held in contempt. LRSD was held to be in civil contempt by order dated August 7, 1987. LRSD has appealed that order. It was not until August 24, 1987, shortly after LRSD had been held in contempt, that it felt moved to seek this writ. In fine, at least thirteen 03) orders which , subs t 'a n ti a 11 y affected the part i es i n this case were entered in the four months between the order denying recusal and LRSD ' s petition for writ of mandamus . Further, at least eleven appeals have been taken in that time . In dealing with a delay of this nature , the 1st Circuit, in In~ United Sho~ Machinery Corporation, 276 F.2d 77 (1st Cir. 1960) quoted with app r oval the following language : 6 7 A litigant cannot experiment with a judge presiding over the case. We cannot permi.t .. a lit.igant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with h.is toe, and if found to his liking, decides to take a plunge . (276 F . 2d at 79). ----- It is apparent that petitioners filed this petition for a writ only after being stung by the contempt order of August 7, 1987 (while they were flush with victory in virtually every area of this litigation). The Petition was nowise timely and should be dimissed out of hand to prevent manifest injustice. II. LRSD'S \"EVIDENCEJ OF THE APPEARANCE OF LACK OF IMPARTIALITY IS LEGALLY INSUFFICIENT TO REQUIRE RECUSAL LRSD has characterized its faculty assignmentsand c on t r a ct re g a rd i n g th .o s e as s i g n me n ts as II ma n a g e me n t prerogative . 11 (LRSD Petition for Writ paragraph 2) . Judge Woods considered the faculty assignmens to be an integral p a r t o f  t h e s t u d e n t a s s i g n m e n t a s p e c t o f t h e L R S D Desegration Plan . LRSD's discontent with Judge Woods is that he has noticed sua sponte its patent, notorious deviations from court approved desegregation plan. The Judge has insisted that all par~1es comply with court approved desegregation plans. (March 27 hearing p. 14). This Court has recognized the history of noncompliance with desegregation plans and court orders in school desegregation cases in Pulaski County, Arkansas. Little Rock School District v . Pulaski County Special School District, 778 F.2d 404, 422 (8th Cir. 1985) ( 11NLRSD has failed to comply fully with desegregation orders of the district court .. . and this Court. \" ) Id. at 420. ( 11The district court found that PCSSD had failed to comply with [Judge Henley's] decree and noted that, at trial, many PCSSD Board of Education members were not even aware of the contents of the decree.tr) Tbis was crystal\\ clear to LRSD. In the Court's letter/order of March 20, 1987, Judge Woods said: . However, I am determined that the plan which I approved will be carried out. If a delay is necessary, I want you to come to me- and discuss the reasons why that is so. I am of the opinion that the plan can be put into effect if the measures which I stated above are taken . . All of these district plans are to be carried out and carried out in an effective manner, and I hope I have made this clear. If we cannot implement these plan~ in a way to insure quality schools, then I want them delayed until we can implement them correctly. Some of the problems that we have encountered in these three districts have resulted from not carrying out orders of the court. Zinna mon is a case in p oint . I a m determined that my orders be carried out or the court b~ given a sufficient -reason why they cannot be carried out without being modif i ed. No one h as asked to modify the pLan which you submitted and I approved, and I expect that it will be fully and carefully complied i~ith in every detail . The student assignment segment of the LRSD Desegregation Plan (Plan) approved by the Court contains two primary components : (1) an initial assignment for each stude.nt and (2) an optional 11controlled choice \" component by which students who were unhappy with their i nitial assignments could request alternate assignments. The alternate requests were to be \"controlled \" or constrained by the requirements availability. of racial balance and the space On February 27, 1987, the district court approved the 11 broad outli n e \" of L RSD's student assignme n t plan . The initial assignments were to be made based on only two factors, \" racial equity and mi ni mal busing . 11 (Plan p: 13) . By contrast, the \"controlled choice 11 component of the Plan was quite specific: \"After parents have been notified of the schools to which their children have been assigned, '. they will have a period of one month\" in which to make an alternate choice. (Plan at 13) . \"Parent s w i lJ. be a ct i v e 1 y encouraged to  visit . schools before making their selections \" (Plan at 12). (Emphasis theirs). \"School visits will be arranged during and after school hours. 11 (Plan at 12). 11Parents will have direct access to teachers and principals in all schools. 11 (Plan at 12) . 11 At 1 e as t t w o w eeks p r i or t o the re gist rat i on period , ea ch school will conduct parent information meetings in the schools. \" (P.lan at 12). By the explicit language of the Plan, the choice component was meant to be not only \" contr,olled, 11 but \"infor:'med .\" Initial assignments were sent home with school children on Wednesday, March 18th . Parents were jnstructed that alternate choices would have to be returned to LRSD's administrative offices by Apr.il 1, 1987, thirteen days later . Those thirteen (13) days included two weekends, a teacher work day and a week of spring breik during which all schools were closed. Parents were effectively given three (3) days to visit and - - - - - - - --- --- ------------ - ~ Court specifically ordered LRSD to nmake as little change as possible in the present staffing .. 11 (Petitioner's Exhibit No. 3, p.2) . A conference was held on March 27, 1987 at the request of LRSD . The Court repeated its concern that LRSD had unilaterally short-circuited vital components of its Plan by shortening the time and by failing to have staff in place. Counsel for LRSD, in an effort to persuade the Court to permit the shortening of the time, represented to the Court that parents could visit with staff even if the time were shortened since the district was in 11the final phases of assigning staff. 11 (M.i;irch 27th hearing at p . 8). Counsel . 1_: for LR SD v o 1 u n teer e d that staff assign men ts co u 1 d be completed within \"seven !_Q ten days 11 (March 27th hearing at p. 8). This assertion was not made in answer to a question by the Court, but rather was announced early in the hearing. Yet, LRSD now contends, 11In an unprecedented action, the district court sua sponte ordered LRSD to re - assign its faculty within ten (10) days (Petitioner ' s  Brief, p . ix . ) . \"Whoso diggeth a pit shall fall therein. 11 (Proverbs 26 : 27 l - At the March 27th hearing, counsel for LRSD made this flat - footed statement: nThere are not going to be major changes in staff at any secondary school, even at any elementary school. 11 (March 27th hearing, p. 10). At this 2 time, the court did not know, though presumably counsel for LRSD did know, that LRSD and its teachers' union, Little Rock Classroom Teachers Association (LRCTA), had consummated a \"supplemental agreement 11 to the Professional Negotiations Agreement (PNA) which was before the Court . This supplemental agreement, though not before the Court, differed materially from the LRSD desegregation 3 plan approved by the Court . Nonetheless, teacher assignments were made on April 10th in conformity with that supplemental agreement . By terms of the supplemental agreement, a _hypothetical \"model faculty\" was con..structed by computing the district aver~ges of the 1986~87 LRSD teacher pool for the following factors : (1) gender (2) education (3) experience (4) age and (5) race. By the terms of the 2 3 The first inkling the court had of the existence of this supplemental agreement was whe n it was attached to LRSD's April 22 Recusal Motion. At the April 27th hearing, LRSD contended that its Plan had always included the five factors l i sted above . LRSD's expert told the Court that 11 i n telligent people 71 would have understood that t):1e Pla,n included these constraints . (April 29 hearing, p . 255) . This agreement (which LRSD now contends was made nimmediately \" after July, 1986 (Petition p . 2)) was actually consu mm ated on March 5, 1987 . supplemental agree~ent, assignments macte for 1987 - 88 were required to mirror would tolerate but 1986 - 87 LRSD staff demographics and a s i x ( 6 ) /p e r c e n t de vi at i on f r o m th e average. This, ,in spite of the fact that LRSD knew it woufd add fourteen annexed schools and se~en thousand students in 1987- 88 . Anyone with rudimentary knowledge of this case could plainly see that balancing .five factors to within six percentage points of the exact average would require tremendous shifts in existing faculty. It had been clear since November, 1986, that LRSD would gain 7,000 new students (over 35% of its 1986-87 student population ) , w h i ch , w o u 1 d o b v i o u s 1 y '.' i n v o 1 v e h i r i n g ma ri y new fa cu l t y members. It is hard to understand why LRSD counsel, aware of the agreement, assured the Court on March 27th that there would \"not be major [staff] changes 11 (March 27th hearing, p . 10). As noted, the Court had no knowledge that this \"modeP would be used until April 20th. But simple logic reveals s er i o u s fl a.w s in the rn ode 1. F or e x a mp le , L RS D con ceded that the vast majority of elementary teachers in 1986- 87 were female. (April 29 hearing, p. 232). Yet, the 11model1' e. would freeze as \"ideal\" the 1986 - 87 ratio of . male to female teachers! This is not, however, a lawsuit concerning gender. It does concern race. The Plan approved by the district court states: \"The reorganized Little Rock School District should be staffed disegregatively accor ding to two policy guidelines: (1) 11staff ratios will comply with the Order of the Eighth Circuit Court of Appeals, which allows a deviation of one - fourth of the remedial guideline,\" and (2) \"black staff will comprise at least one-half (1 / 2) of all personnel in each position or job description. \" (Plan at p . 16, 17). The Plan furthe r states: \"The timetable fully to implement the staffing re medial policy guideline is five years. 11 (Plan ,at 17). It was a material change in the Plan for LRSD to agree to add four factors to the race issue; it was a material change to agree to a six percent deviation in the racial ratio rather than the Plan's 25%; it was a mater i al change to shorten the five year implementat i on to one year. LRSD complains that the Court noticed the massive teacher reassignments sua ~E...!:.~ (Petition, p. 3, .para graph l O) and further complains that the Court improperly concluded that LRSD had violated previous Orders . The L RS D a d m i t t e d by letter d at e d March 25, 1987 (Petitioner's Exhibit PX-5) and in open Court that it had changed the Plan without prior court a pp r Q v a t Cl e.a.r-1-:f-i-6-R-.D---a-1-m--.:i:-t--1;-e-1- \\r:i:-er-l1-,a..+L +i-nn\"\"g,.......,p'\"'r-.e~v .,i .. ,,,o;rQisc\" C\"'\"'.o;:;u;-;-;::r+=t_ ____ i orders. The LRSD cites not a single case to support its I position that a federal district court mus~ sit idly by while a school district notoriously violates court desegregation orders (and wait for some party to invite the Court to enforce its orders). In Busch Y...:._ Sea World.[ Qhio, 95 F . R.D. 336 (W.D . Pa. 1982) the Court took judicial notice that a certain corporation had begun an advertising blitz via newspapers, radio and television. The Court, in Barnes v. Bosley, 568 F. S-upp-. 14'Oo (E'.D. Mo. 1983), took judicial notice that the Democratic party was firmly in control of political .~ o f f i c ~ s i n S t . L o u i s . L i k. e w i s e , J u d g e D a vi es n o t i c e d sua sponte the actions of then-governor Orval Faubus. See Faubus v. United States 254 F . 2d 797 (8th Cir . 1958). 4 LRSD Ex. PX-9 is a letter from Judge Woods to .. Ruth Shepherd, an immediate past LRSD board member. LRSD contends that this indicates the judge 1s \"prejudgment \" of issues to be presented at the April 29th show cause hearing. As is apparent 1 on April 1, 1987, the date of the letter, staff assign men ts had not been made; no show cause Order had been issued. The Court had no reason to disbelieve LRSD counsel when he assured the Court four d a y s e a r 1 i e r th at th er e w o u 1 d b e n o ma j o r s t a f f ch-a n g e s . The language concerning disregard of the Plan in virtually e Ve r y d e t a i l i s an O b Vi Ou s r e f e re n C e- t O th e f a i 1 u re Of LRSD to carry out the features of controlled choice contained in the Plan . The Court had no way to know that as that letter was being written~ LRSD. was actively viO'\"lat rng the cfirecfioffsot he .March 27th Order. .,. I I I I I I I I I I I i I I I I    I  '  \".\"' ~ Recalcitrant . school districts throughout this Circuit would delight in a holding th~t desegregation orders can be bol d-ly --arrd--p,:rb-1-rci.y-\u0026amp;e\"fIT~so J'. on g as no pa r-t y has the temerity or motivation to file a formal pleading. Multiple exhibits extracted from two local papers have be e n at t a ch e d t o th e L .RS D P et i t i on t o sup p o r t th. e proposition that a reasonable person would conclude that the appearance of impartiality had been lost through ex parte communications . To the contrary, the exhibits demonstrate only that the Petitioner's allegations are without basis in fact. Of the twenty-two articles submitted, five made no reference whatsoever to Judge I Woods. The remaining articles chronicle the reactions - of various groups and in~ividuals to orders issued by the Judge. In not one of the submitted articles does there appear an ex parte -comment attributable to the Judg7_ which go to the merits of any pending issue. Two newspaper photographs depict Judge Woods with students ironically LRSD students, not students from NLRSD or PCSSD. These photographs hardly create the appearance of bias against LRSD . Two articles refer to statements made by an unnamed spokesman for Judge Woods. Surely these triple hearsay statements (the newspaper reporter said that the unknown source said that the Judge said) cannot be considered as credible evidence justifying  the disquali~iG-act--i-G-H- --Of-- a- - ~g- . -- --- LRSD cites Price Brothers Co.~ Philadelphia Gear Corporation, 629 F.2d 444 (6th Cir. 1989) for the proposition that a Judge's sending his law clerk to gathe~ evidence is destructive to the appearance of impartiality. In Price Brothers, the Circuit Court remanded the case for an evidentiary hearing. In the appeal of the proceedings after remand, the Sixth Circuit found that the law clerk's trip from the Southern District of Ohio to New York to observe the machines in the Plaintiff's factory did not ~ w-arranf r eversal. Price Brothers Co. ~ Philadelphia Gear .fS'...:.., 6 4 9 F . 2 d 4 1 6 ( 6 t,_ h C i r. 1 9 8 l ) . .:t The law clerk's viewing of the machine to help the Judge better understand how the machine worked was not considered as \"evidence\" in the case. Similarly obtaining a current list of principals in the LRSD was hardly 11evidence 11 in this case. The names and school addresses of the LRSD principals has never been in dispute. It is absurd to consider the picking up of an undisputed list of names and addresses as ngathering evidence. 11 Additionally, the Sixth Circuit in both Price Brothers opinions indicated that consent, even implied consent, to the law clerk's participation would be a factor in considering their later objection to the law clerk's action. By ER-S-B~ LRSD administrative offices (where at least two LRSD attorneys were present) and was told by the ~ecretary (after checking) that a list of principals was available . LRSD would also have Judge Woods recuse because delegations of LRSD students arrived unannounced at his office to present a petition complaining of LRSD's violations of its Plan. If such an incident requires recusal, then any party who wishes to go \"judge shopping 11 need merely show up at a judge's office with a photographer and a petition .  . ., III. IT IS NOT IN THE INTEREST OF THE ~ARTIES OR THE PUBLIC TO REQUIRE JUDGE WOODS TO RECUSE Notably, the L RSD seeks Judge Woods' recus a 1 lfas ed on .. 28 U.S . C. Sec. 455(a) which concerns the appearance of partiality rather than actual bias. In truth and in fact, LRSD has been the beneficiary of virtually all of Judge Woods' rulings over the five years of litigation in this school desegregation case. As Petitioner notes, Sec. 455(a) is primarily intended 1 q , I to insure public confidence in the impartiali.ty of the judicial process, not to protect litigants from actual Court of Appeals recently held that in a Sec. 455(a) rec u s al action, abs en t ..!:_~~ of person~ 1 bias , the reviewing Court should consider, inter alia, whether re-'-assignment to a dif_'_ferent judge would entail a waste and duplication out of proportion to the gain in preserving the appearance of fairness. Cinton v. Union Pacific R a i 1 r o a d f.2.:_, 813 F. 2 d 9 1 7 , 9 21 ( 9 t h C i r . 1 9 8 7 ) . This lawsuit now embodies well over nine hundred pleadings. It is difficult to imagine a more vivid illustration of d { spr~portionate waste and duplication involved in reassigning this case~~ this stage of the game. But more :~ i mp o ; t a n t 1 y , th e p u b 1 fc mu s t be a s s u r e ct th at ea ch p a r t y will abide by court orders, regardless of its status as 11pla int iff\" or \"defendant. 11 IV. CONCLUSION The district court correctly summed up the LRSD attitude in his April 30th Order when he noted: .LRSD's Motion to Recuse represents a time-worn tactic in sports contests and trials. When the umpire or judge calls you for a flagrant violation of the rules, your response is not to offer a defense for your conduct but to attack tlre, nrrvrre- oi'\"\"'ttre\"-j'trd~g, . . . . WHEREFORE, Respondent respectfully requests that the LRSD Petition for Writ of Mandamus be summarily denied. RESPECTFULLY SUBMITTED, WILSON, ENGSTROM, CORUM \u0026amp; DUDLEY P. 0. Box 71 Little Rock, AR 72201 (501) 375-6453 Attorneys for Respondent .. . '.,(, CERTIFICATE OF SERVICE A copy of the foregoing Response to Little Rock School District's Petition for Writ of Mandamus has been sent via Federal Express to all attorneys listed be-low whose mailing address is other than Little Rock, AR, and has been delivered by hand to all attorneys in Little Rock, AR on this 21st day of September, 1987 to : Philip E. Kaplan, Esquire 415 Main Street Little Rock, AR 72201 P. A. Hollingsworth, Esquire 415 Main Street Little Rock, AR 72201 Janet L. Pulliam, Esquire One Spri._nP- S~r~~-t,_ .Znd Floor Little Rock, AR 72201 Randy McNair, Esquire 201 E. Markham Little Rock, AR 72201 Richard -W .- Roa-eh-e-H,-E-squ-re-~-  - ----~------------- -Post Office Box 1510 Little Rock, AR 72203 Theodore Shaw, Esquire NAACP Legal Defense Fund 99 Hudson Street, 16th Floor New York, New York 10013 Robert C. Lowry, Esquire 905 Boyle Building Little Rock, AR 72201 John W. Walker, Esquire. 1723 Broadway Little Rock, AR 72206 M. Samuel Jones, III., Esquire 2200 Worthen Bank Building LJttJe _fioc_k,. AB  7_2201 Philip K. Lyon, Esquire Stephen W. Jones, Esqu~re 3400 Capitol Tower -~ Capitol at Broadway Little Rock, AR 72201 Phil Neal, Esquire 208 South LaSalle Street Chicago, Illinois 60604 William H. Trice, Esquire 211 Spring Street Little Rock, AR 72201 Robert Cabe, Esquire 1615 Worthen Bank Building Little Rock, AR 72201 Hillary Clinton, Esquire Rose Law Firm 120 East 4th Street Little Rock, AR 72201 -. i  .., I 7 I I !  7 ! ~7- 7 j ,, Lazar Palnick, Esquire 1723 Broadway Little Rock, AR 72206 John --M .- -El-i..J.l:w.J:.-me-F-, - ~1.1-i P.e --- -c/ o Ketron, Inc. 1700 North Moore Street Ste. Arlington, Virginia 22209 David Flynn, Esquire 1710 Civil Rights Division Room 5740 Department of Justice Washingtbn, D.C. 20530 Carl R. Brents, Clerk U. S. District Court Post Office . Box 869 Little Rock, AR 72203 Sharon Streett Department of Education 304A Arch Ford Education State Capitol Mall Little _R_ock, _ Ajl  l2~01 Building .... : ... ,,.. SUMMARY AND REQUEST FOR ORAL ARGUMENT As Petitioner has noted, the Motion to Recuse is --- ------ ---------~----------........ - - - -- purportedly ~ottomed upon statements and actions taken by the district court in response to LRSD ' s faculty assignment plan. Petitioner has requested oral argument and Respondent will be pleased to have this issue argued orally. At the same time, however, Respondent urges the Court to consider this specific issue (recusal) in an expedited manner. Otherwise, thousands of students will be attending school under plans that are clouded by this issue. This issue can be argued in fifteen minutes per side. TABLE OF CONTENTS SUMM-A-RY AN{) R-EQ+J-E-S'f-~H\u0026gt;,R G-R-Ab  -A-RGlJ.M-E-N..'f .. ,-,--------- -----TABL E OF CONTENTS .. TABLE OF AUTHORITIES. STATEMENT OF ISSUES . STATEMENT OF THE CASE ARGUMENTS I. THE LITTLE ROCK SCHOOL DISTRICT'S PETITION FOR WRIT OF MANDAMUS MUST BE DENIED AS ii iii iv-v 1 UNTIMELY . . . . . . . . . . . . . . . . . 2 II. LRSD I S \"EVIDENCE 11 OF THE APPEARANCE OF LACK OF IMPARTIALITY IS LEGALLY INSUFFICIENT TO REQUIRE RECUSAL . . . . . . . . . . . . . 7 - - -- ~. III. IT IS NOT IN THE INTEREST OF THE PARTIES OR THE PULIC TO REQUIRE JUDGE WOODS TO RECUSE .. . . . . . . . . . . . . . . . 19 CONCLUSION ADDENDUM i i .... .. 20 TABLE OF AUTHORITIES CASES: Barnes v. Bosley r- . 5.6.K. E .. S.U.p.p Mo. 1983) ... .. ..   Busch v . Sea World of Ohio, 95 F . R.D. 336 (W.D . Pa.1982) . . . . . . . .... Cinton v . Union Pacific Railroad Company, 813 F.2d917 (9th Cir . 1987) .. .. . Faubus v. United States, 254 F. 2d 797 (8th Cir . 1958) . ...  .. . . .. . lE_ Re United Show Machinery Corporation, 276 F . 2d 77 (1st Cir. 1960) ... .. . . Liddell v . Board of Education of City of St. Louis'; 677 F . 2d 676 (8th Cir . 1982J. Little Rock School District v . Pulaski County Special School District, 778 F . 2d 404 (8t fi Cir . 19-8\"5Y . . .  ... .  .. . .. . 16 16 20 16 6, 7 2 8 Price Brothers Co.~ Philadelphia Gear Corp . ~ 629 F.2d 444 (6t'.b Cir . 1980) . . . 18 v,,. Price Brothers Co . v . Phi l adelphia Gear Corp., 6 4 9 F . 2 d 416 ( 6~ C i r . 19 81 ) . . . -. - .- . . . . 1 8 United States v . Balistrier i, 779 F . 2d 1191 (7th Cir.1985) . . . . . . . 2, 3, 20 United States v . Olds, 426 F . 2d 562 (3rd Ci r . 1970) .. -. -. - .-. . . . . . . . STATUTES 28 U. S . C. Sec .. 455(a) ..... . ...... . passim i i i STATEMENT OF ISSUES I. Whether Petitioner's failure either to appeal the April 30th Order denying the recusal motion or to petition this Court for a Writ of Mandamus for almost four months bars this application for mandamus relief. In Re United Show Machinery Corporation, 276F.2\u0026lt;;! 77 (1st Cir. 1960) United States v . Balistrieri, 779 F.2d 1191 (7th Cir. 1985) United States~ Olds, 426 F.2d 562 (3rd Cir. 1970) II. Whether the district court judge abused his discretion --by -flndi ng that a reasonable per~on knowing all the pertinent facts would believe that Judge Woods could n o t b e i mp a rt i a 1 t o th e\" L i t t 1 e R o ck S ch o o 1 D i s t r i ct w h e n the 11 evidence\" consists of: a. Newspaper clippings covering publicity surrounding the Judge's Orders; b. Newspaper photographs of the Judge pictured with LRSD students; c. A responsive letter to a former member of LRSD Board of Directors from i V the Judge; d. A trip to LRSD administrative LRSD principals for the 1987- 88 school year; e. Non - specific allegations of ex ~~!~ telephone conversations, unsupported by specific dates, times, or people or by affidavits . Barnes v. Bosley, 568 F.Supp. 1406 (E.D. Mo . 1983T Busch v . Sea World of Ohio, 95 F.R . D. -336 (.W.-D- . .e.a _ .198.2) -- - -- Faubus v. United States, 254 F .2d 797 (8th Cir. -1958) ,,., : ~ Price Brothers Co. v . Phi l adelphia Gear Corp . , 649 F . 2d 416 (6th Cir. 1981) III. Whether it is in the interest of the parties or the public to require Judge Woods to recuse absent proof of actual bias . Cinton v. Union Pacific Railroad Co., 813 F . 2d 917(9th Cir . 1987) - United States v . Balistrie r i, 779 F. 2d 1191 (7th Cir. 1985 V IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS. 4:82CV00866 WR W/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al ~RS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al RECEIVED NOV 1 3 2002 OFFICE OF DESEGREGATION MONITORJNG DEFENDANTS INTER VEN ORS INTER VEN ORS ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL This case has been tried and decided, and all parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the request for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, I will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. IT IS SO ORDERED this 12th day ofNovember, 2002. w~t!f () \u0026lt;-- K lfll~111if' m. R. Wilson, r. UNITED STATES DISTRICT JUDGE L 7 0 1 IN THE UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al -MRS. LORENE JOSHUA, et al KA THERINE KNIGIIT, et al DEFENDANTS INTERVENORS INTERVENORS ORDER DENYING MOTION FOR EXTENSION Olf TIME TO FILE NOTICE OF APPEAL This case has been tried and decided, an.d aH parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the - indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the tequest for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, l will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. fT rs SO ORDERED this llt!.1 day of November, 2002. w.~ !L({ZPh111tr- UNITED ST ATES DISTRICT JUDGE  TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OP ARKANSAS Telephone 501-604-5140 Fax Number 501-604-5149 Chris Heller \u0026amp; Clay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennis Hanson Ann MAl'shall 376-2147 376-9442 375-1027 663-6939 374-4187 682-2591 371-0100 There are Z.., pages, including this Cover Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Office of Judge U.S. District Court 600 West Capitol, Room 413 Little Rock, A.-kansas 72201 Christy Conrad, LRSD Law Clerk 604-5143 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS . 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al RECEIVED NOV 1 3 2002 QFflCEOF DESEGREGATION MONITORING 1..,_v  1r, yyppa r,u ,,-1 IV ,.....,;\u0026lt;, u.s~ilkf.FcQRT EASTERN DISTRICT ARKANSAS NOV 1 2 2002 ~~MES~~Ep ? PLAINTri?~P. CL~ DEFENDANTS INTER VEN ORS INTER VEN ORS  AMENDED ORDER DENYING MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL This case, as it relates to LRSD, has been tried and decided, and all parties are entitled to have it resolved, once and for all, as soon as reasonably possible. Counsel for Joshua indicates that he anticipates filing a recusal motion at some time in the indefinite future. In my judgment, it would be inappropriate to delay this case because such a motion will be, or might be, filed. Accordingly, the request for an extension is denied. I'm inclined to agree that the Eighth Circuit should be afforded the opportunity to decide any recusal issue that may arise, along with other issues already decided. So, if Joshua files a recusal motion promptly, I will rule on it promptly. If Joshua doesn't prevail on the recusal motion, they can move the Eighth Circuit to consolidate the issues on appeal. Another order will be entered shortly which will address other issues raised by Joshua's Motion. IT IS SO ORDERED this 12thday ofNov, e,._20-m=.0'-2-.- b-e_-r-_-------- THIS DOCUMENT ENTERLJ ON  Wm. R. Wilson, Jr. DOCKET SHEET iN COMPLIANCE UNITED STATES DISTRICT JUDGE WITJi RULE 58 AND/OR~R7C9P (a ON lf-/;....,o,_-BY ~?'7\"\"---\"-'-'=-== DiLLWiLSON JUDGE UNiTEO STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS IKIIJ W. CAPITOL, HOOM 423 LITfl.E ROCK, ARKANSAS 7220i-332$ \\~U I J tJiU4-:t l 'tU Fii.:slmlle (GOf) \u0026amp;G45146 -l\\lf-'lm....=...\u0026gt;....,...... ..hAr 10 ')()()\"') _...,~ .... -, ---- BYP'AX Mr. Chris Heller \u0026amp; Mr. Clay Fendley Mr. Sam Jones 376-2147 376-9442 Mr. Richard Roachell Mr. John Walker Mr. Dennis Hanson Ms. Ann Marshall \".\u0026gt;'7C: 1 f'l/')'7 ..J t ._J-.LU..GI 663-6939 374-4187 682-2591 371-0100 RE: Littie Rock t\u0026gt;chool District v. Pulaski County Special School District, et al., 4:82CV00866 WRW /JTR Enclosed is a copy cf an Order ,.;vhich amends the Order I entered earlier toda:f in which I denied Joshua's Motion for Extension of Time to File Notice of Appeai. The first sentence of the Amended Order is simply to narrow the scope of the Order-- since we are considering LRSD, a..1'1.d not the othe:r school districts . cc: The Honorable J . Thomas Ray Original to the Clerk \\ 1/m. R. \\1Jilson, Jr.  TO: F.A_X COVER SHEET ONITED STATES DISTRICT COURT EASTEPJV DISTPJCT OF ARKA.lfSAS Telephone 501-604-5140 Fax Number 501-604-5149 Chris Heller \u0026amp; Cfay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennis Hanson Ann Marshall 376-2147 376-9442 375-1027 663-6939 374-4187 682~259} 371-0H!O DATE: NotJQ..vv\\htlf ! 7-, zooz_ There 2re 3=, pages, including this Co...-er Sheet, being sent by this facsimile transmission. MESSAGE SENT BY: Office of U.S. District Court 600 West Capito!, Room 423 Little Rock, Arkansas i2201 Christy Conrad, LRSD Law Clerk _604-5143 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, VS. * * * * 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., * Defendants, * * MRS. LORENE JOSHUA, et al., * Intervenors, * * KATHERINE KNIGHT, et al., * Intervenors, * ORDER FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS NOV 1 2 2002 In Joshua's Motion for Extension of Time to file notice of appeal, filed on November 8, 2002, they object to the statement in my order of October 29, 2002 in which I state that Mr. Walker helped to initiate the mandamus proceeding (against Judge Woods). Technically, Joshua is correct. On a review of the record, it appears that Mr. Walker did not proceed via mandamus, but, instead, Joshua directly appealed Judge Woods' denial of Joshua's motion for him to recuse. Joshua's position, in this regard, clearly elevates form over substance. Regardless of how it was styled, Joshua was seeking the identical relief sought by LRSD back at that time-- the removal of Judge Woods from the case. I quote again from the Eighth Circuit's opinion: We tum now to the arguments made by LRSD and the Joshua Intervenors that the District Court should have granted their motion for recusal. See LRSD v. PCSSD, 839 F.2d at 1301. There is an eloquent silence in Joshua's most recent motion -- it does not address the issue of waiver and estoppel. The point here is that Joshua's counsel knew to a lead pipe certainty of my -2- representation of Judge Woods in the mandamus proceeding in 1987. In fact, the certificate of service on the Eighth Circuit brief! submitted on behalf of Judge Woods shows Mr. Walker as one of those lawyers who was served. (See Response of The Honorable Henry Woods, US. District Judge for the Eastern District of Arkansas, to Petition for Writ of Mandamus -- which was attached to Joshua's November 8 motion). This being so, it is hard not to believe that Joshua's counsel -waited to see how the case turned out, and, when the result did not suit them, they then raise the recusal issue. The Eighth Circuit has long disapproved of this tactic . ... .it is clear that some of the Court's findings regarding its role when in private practice are inconsistent with the findings of the Court of Appeals regarding the same matter .... I am without a clue as to what Joshua means by the above-quoted language. In any event, after having reviewed the brief that I filed on behalf of Judge Woods in 1987 I see no reason to change my mind in any respect, and see nothing in the brief that adds anything to Joshua 's earlier motion for a hearing. None of the issues, listed by way of history only, in that brief were before me in the current litigation. And, as stated in my earlier order, I represented none of the parties, and had no involvement in the merits of the case. So, with respect to my order of October 29, 2002, I'll stand pat -- Joshua's request that I reconsider that order is denied. rft IT IS SO ORDERED. Dated this 2 day of November, 2002. THIS DOCUMENT ENTERL.J ON DOCKET SHEET IN COMPLIANCE WI/Tt._ RULE 58 AND/OR 7~9 )) FFR RCCFP ON _t_/;)..,{;))--BY ~ -7~_...,\u0026lt;;..:'--~- 9Nr!lOllNOW NOllVS3HS3S30 ~O 3~1.HO ZOOl 8 I AON LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. i\\1RS . LORENE JOSHUA, ET AL. KATHERINE KN1GHT, ET AL. RECEIVED NOV 1 3 2002 OFFICE OF DESEGREGATION MONITORINO NOTICE OF APPEAL DEFENDANTS INTERVENORS INTERVENORS The Joshua Intervenors give notice of appeal pursuant to Rule 3(a) of the Rules of Appellate Procedure with respect to Honorable William R. Wilson Jr. 's memorandum opinions and/or judgments entered herein on September 13, 2002 and October 11, 2002 respectively. ) ,/i) .,, ,/ ~- ,/ ,, ~!,, '/!Ji.;f I f.-,.,. . J/._ /J/!,rla_ 1 ---:\"i;:J Robert Pressman 22 Locust A venue Lexington, MA 02421 781-862-1955 J n . Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501-374-3758 501-374-4187 Rickey H. Hicks Attorney At Law 1100 North University, Suite 240 Little Rock, AR 72207 501-663-9900 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Notice of Appeal has been forwarded to all counsel of record via United States mail, postag repaid on this 2th day 'November, 2002. / \\ RECEIVED FiLr::0,-. ;:::.,s lJ.s. DIST-R \"- --n, TERN DISTRICT COURT ICT ARKA,\"iJSAS NOV 1 9 2002 OFFICE OF DESEGREGATION MONITORING NOV 18 2G02 JAMES W ti, By   ilcCORMA CK Ct  \" , -ER!'( IN THE UNITED STATES DISTRICT COlJRT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 82:CV00866 WRW PlJLASKI COUNTY SPECIAL DISTRICT, ET AL. NfRS LORENE JOSHUA, ET AL. KA THERINE W. Ki'\\ITGHT, ET AL. JOSHUA INTERVENORS' SUPPLEMENTAL MOTION FOR EXTENSION OF TIME TO RESPOND TO PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS PCSSD'S MOTION FOR APPROVAL OF MIDDLE SCHOOL STTE The Joshua Intervenors respectfully request that the court further extend the time for their response to the pending motion of the PCS SD regarding the construction of a middle school in the Maumell e area. The Joshua Intervenors have requested the perspective of the Office of Desegregation Monitoring regarding the subject. The parties have not yet been privy to that for the reasons which relates to the personal circumstances of the ODM Director, M,s. Nfa.rshall. (See Exhibit 1 - Letter dated November 18, 2002 to Honorable Judge William R Wilson) Counsel for Joshua have sought to obtain the concurrence of the PCS SD counsel and learned that he is out ill today. WHEREFORE, the Joshua Intervenors respectfully request that the court extend the time to and including December 6, 2002 for their response to PCSSD's Motion for Approval of 1'liddle School site. Respectfully submitted, John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (fax) ./ ./ CERTIFlCA TE OF SERVICE I do hereby state that a copy of the foregoing motion has been sent via United Stat es mail postage prepaid to all counsel ofrecord on this 1g r1i day of Novem.,b er, 200J- . . /: ,'\\ I I ./ / ( /~ !-- '1-- C/?L_,{/- 17 '\\ ': 1 ,,, VVV'-- vr \" .;/r c,.\u0026lt;.. '---\"'L/ .. 2 JOHN W. WALKER SHAWN CHILDS JOHN W. '\\iVALKER, P.A. A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FA,'{ (501) 374-4187 Via Facsimile - 604-5149 November 18, 2002 .Honorable Judge William R. Wilson United States District Judge 600 West Capitol, Suite 423 Little Rock, AR 72201 Re: Case No_ 4:82CV0866WRW/JTR LRSD v. PCSSD Dear Judge Wilson: OF COUNSEL ROBE..\"'l.T McHENRY. P _-\\.. DONNA J . .McHENRY 8210 HENDERSON Ro.w LITTLE ROCK. ARK.-u'IS.-\\S 72210 PHONE: (501) 372-3425  FAX (501) 372-3423 ~Lill: mchenryci@swbell.nec RECEIVED NOV 1 9 2002 OFRCEOF DESEGREGATION MONITORING We asked the Court to extend the time for responding to the PCSSD's motion for approval of middle school site until tomorrow, November 19, 2002. The court allowed the request. A partial basis for the request was the intercession of the Office of Desegregation Monitoring with a possible report for the use and benefit of the parties. No one objected to ODNf's involvement. In the meantime, ODM.Director Ann Marshall has experienced well known personal problems of increasing magnitude over the past several weeks which resulted in the funeral of her husband, Mr. Norman Marshall on Saturday, November 16, 2002. We can . understand the reason for any delay from that office. On the basis of those unfortunate circumstances, we are requesting that the Court extend the ODM up to and including December 3, 2002 in which to make its report. We will be prepared to respond to the pending motion of Mr. Jones within three days thereafter and would request that we be allowed!until December 6, 2002 to make that submission. I appreciate whatever consideration the Court will allow. JWW:js cc: :ivfr. Sam Jones Ms. Ann 1Iarshall All Other Counsel EDWARD L . WRIGHT (1903-1977) ROBERTS . LIN D SEY (1913-1991) ISAAC A. SCOTT, JR . JOHN G. LILE WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORNEYS AT LAW KIMBERLY WOOD TUCKER RAY F . COX, JR .  TROY A . PRICE PATR ICIA SIEVERS HARRIS JAMES M. MOODY, JR . KATHRYN A . PRYOR GORDON S. RATHER, JR . TERRY L. MATHEWS DAVID M. POWELL ROGER A. GLASGOW C. DOUGLAS BUFORD . JR . PATRICK J . GOSS ALSTON JENNINGS , JR . JOHN R. TISDALE KATH LYN GRAVES M. SAMUEL JONES Ill JOHN WILLIAM SPIVEY 111 LEE J. MULDROW N.M. NORTON CHARLES C. PRICE CHARLES T . COLEMAN JAMES J. GLOVER EDWIN L. LOWTHER. JR . CHARLES L. SCHLU MBERGER WALTER E. MAY GREGORY T . JO NES H. KEITH MORRISON BETTI NA E . BROWNSTE IN WALTER McSPA DOEN ROGER 0 . ROWE JOHN 0 . DAV IS JUDY SIMMONS HENRY Via Hand Delivery 200 WEST CAPITOL AVENUE SUITE 2200 LITTLE ROCK, ARKANSAS 72201-3699 (501) 371-0808 FAX (501) 376-9442 www . wlj.com OF COUNSEL ALSTON JENNINGS RONALD A . MAY BRUCE R. LINDSEY JAMES R . VAN DOVER Writer's Direct Dial No. 501-212-1273 mjones@wlj.com November 19, 2002 The Honorable Wm. R. Wilson, Jr. 600 West Capitol, Room 423 Little Rock, Arkansas 72201-3325 J . MARK DAVIS CLAIRE SHOWS HANCOCK KEVIN W. KENNEDY JERRY J . SALLINGS WILLIAM STUART JACKSON MICHAEL D. BARNES STEPHEN R. LANCASTER JUDY ROBINSON WILBER KYLE R. WILSON C. TAO BOHANNON KRISTI M. MOODY J . CHARLES DOUGHERTY M. SEAN HATCH J . ANDREW VINES JUSTIN T. ALLEN CHRISTINE J . DAUGHERTY, Ph .D .  MICHELLE M. KAEMMERLING ERIKA ROSS SCOTT ANDREW IRBY HOLLY A. ACEE MICHELLE HARGIS DILLARD PATR ICK 0 , WILSON Licensed to practice before the Unffed States Patent and Trademark Office RECEIVED NOV 2 0 2002 OFACEOF DESEGREGATION MONITORING Re: Little Rock School District v. Pulaski County Special School District; et al. USDC Docket No.: 4:82CV00866WRW Dear Judge Wilson: Enclosed is a copy of the PCSSD objection to Joshua's request for a further delay in ruling upon the pending PCSSD motion respecting a new middle school in Maumelle. MSJ:ao Encl. cc/w/encl.: 380184-v1 Judge J. Thomas Ray All Counsel of Record Cordially yours, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP drrs.,,, IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL .DISTRICT NO. 1, ET AL. RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. NOV 2 0 2002 INTERVENORS OFFICE OF INTERVENORS DESEGREGATION MONITORING PCSSD'S RESPONSE AND OBJECTION TO JOSHUAINTERVENORS' SUPPLEMENTAL MOTION FOR EXTENSION FO TIME TO RESPOND TO PCSSD'S MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE The PCSSD, for its response states: 1. The PCSSD objects to the further requested enlargement of time. 2. Previously, the parties negotiated an enlargement of time until and including November 19, 2002, for the response of Joshua. 3. The PCSSD is unaware of any directive by this Court to the ODM as respects this issue. The PCSSD notes, however, that the ODM, unlike Joshua, was a full participant in the site selection process. 4. Accordingly, the PCSSD respectfully submits that Joshua has not advanced a good and sufficient reason to further postpone the process of this Court ruling upon the pending request of the PCSSD to locate its new middle school in Maumelle. 380181-v1 WHEREFORE, the PCSSD prays that the Joshua motion be denied and for all proper relief. Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 CERTIFICATE OF SERVICE On November 19, 2002, a copy of the foregoing was served via facsimile on Mr. John Walker and via U.S. mail on each of the following: VIA FACSIMILE Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 380181 -v1 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 1::0W'AHO L , WRl(,t'l't pan,. u 11~ R:O!H'.J:tT S . LlNO~EY fU 13- 199tl 18AAC A , SCOTT, J\" . JOHN G . LI LE 0:0~1)0~ S. RATHER , JR. TE~RY L. MATHfWS ;:;. .:..;;c M. ~c,w..,;. ROGE~ A. G, ASOOW C DOVC LAS a~r-a,qc , .:~. PATRICK J . COSS A l_.$ Tt')N ..Jl:MHIN tlS . J~ JOHN R. TISDALE l(ATMLYN GR4VES M. BAMU'EL J ON$ Il l JOHN WII..LIAM .!SPIV~Y Ill Lt'~ J , MULOROW 11 .M. N0~1'0N i;H;..FH,,fS C. F~1CE. CHAACES T. COLEMAN J1't-'fe J . v .. o veR EDWIN L LOWTHER . JR. CH.-.~L~.! I. .!CMLUMIP!!:'lG''!P\\ W~LTf.R E. MAY OREOOAY T . JONES H . Kt lTM MORRISON lli!TTINA E. lllAOWNSTEIN WALTiA Mc.SPA00fN ROGt.R 0 . ROWE ;o;-.1,_ c. oa,ns JUOY s rMMONS M@NJIY Via Hand Delivery WRIGHT, LINDSEY \u0026amp; JENNINGS LLP ATTORME:YS ;\\ \"! L!'.. 'N 200 WEST CAP ITOL AVENUE SUl'r E. 220~ LITTLE ROCK. ARKANSAS 1n 01 . 3699 (50 1) 371-0808 FAX (501) 376942 OF COuN'iEL ALSTON JENN INQS RCXAi.C ;.. . ,.:.;c; BRIJCf A. . LINOSEY J.11kf! ~ R.. VAN CCV~~ Wri ter, Olrecl Di a l No . So 1.21 2.12r3 .,)ones@w1J.com November 19, 2002 The Honorable V\\Jm. R. Wilson, Jr. 600 West Capito!, Room 423 Little Rock, Arkansas 72201-3325 K IM8RI. Y \\l'/000 TUC J\u0026lt;fF( ~,. 1 f C.CA , J,;.: .  TR:OV A, P~1ce ::i:. \":'R::.~;.. 2 :;.:~~:, H.:..~~l~ JAMES M MOOOV. JR . 11.t.TMDV lli! .~ . P R VOP J . MARI( 0.4\\/JS CI.A I Ft E SMOW8 Ml.. NCOCK l( E,Vlf'ril V-t . K!.NNEOV JEaav J. SALUNGS WILLIAM .:!TUAl'l1' JACK.SON MICWAEL O 8A.R:NES l!.7i;;:.,;a;,.. ~ . LANCA,5Te l'f JUDY ROBINSON WJL6tR l(':\"L: r,. W:t .. :-Ot.' C , TAO 80M4 NNON Ki; l!, T I U . Uf')l'){W J . C\"AP.US OOUGHtRT'f' M . SEAN HATCH .J . ANO\"EW' VlN~S .JUST IN T . A U.EN CHRISTINE J. OAUOMER,TV . Pl'l.0  MICHfLLE hi . KAEMMERLING ER+li\\ A. ~OS~ SCOTT ilNDAEW 1R6Y \u0026gt;; Ci..._; A. ;..o~~ '-\"1 1CHEl.. i. ! MAR.0 13 OILLAR:0 P A. 1'\"-JCI( .t\" wn .. SON L\"='9,,~~t1 ti:i ,ar!!:eti-:.e ~~~ !l,e ~!':!?~ 51\"1 Psrenr ena Tr\u0026amp;ll9rnsfl\u0026lt; Office Littie Rock Schooi District v. PuIasK1 County Special School District; et al. r USDC Docket No.: 4:82CV00B66WRW ., . ( Re: Dear Judge Wilson: --,/\\If~/~ JV ' l\u0026gt;\"' Enclosed is a copy of the PCSSD objection to Joshua's request for a further delay in7 r'J!ing upon the per.ding PCSSD motion ;espacting a new middle schooi in iviaumelie. / MSJ:ao Enc!. cc/w/enc!.: 38C1S4-v1 Judge J. Thomas R.ay All Counsel of Record Cordiaiiy yours, ':AAt.AI cmr-. WRIGHT, LINDSEY \u0026amp; JENNINGS LLP r;}.J~ oAt-J~ ~ ~A- Jones, !II iJli., ,J I_ If-() 2- ( ' , - /'d_ ~/4 t-1~ /4r C~\" I n. _ ~.J)/) /11,-,1 /J~ I V ./ ,//' - d\"rlf~' )U ..... V.  TO: FAX COVER SHEET UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKA.i.\\TSAS Telepb.one 501-604-5140 Fax Number 501-604-5149 Chris Heller \u0026amp; Clay Fendley Sam Jones Steve Jones Richard Roachell John Walker Dennb Hanson Ann Marsha!! 376-2147 376-9442 375-1027 663-6939  374-4187 682-2591 371-0100 There are Y pages, including this Co\\.er Sheet, being sent by thfa facsimile transmission. MESSAGE SENT BY: Office of Jud e m. R. Wilson, Jr. U. S. District c'ourt 600 West Capito!, Room 423 Little Rock, Ar-kansas 72201 Christy Conrad, LRSD Law Clerk 604-5143 RECEIVED FILED U.S. DISTi'\u0026lt;ICT COURT NOV 2 1 2002 EASTERN DISTRICT ARKANSAS - OFFICEOF IN THE UNITED STATES DISTRICT COURT EASTER.t~ DISTRICT OF ARKANSAS NOV 2 0 2002 DESEGREGATION MONITORING WESTERN DIVISION JAMES W. McCORMACK, CLERK LITTLE ROCK SCHOOL DISTRICT By: ___~ P=L~AIN~=T=I=~=p=- c=L-E-R---K VS. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al R ECEIVf r- DEFENDANTS INTER VENO RS INTER VEN ORS MRS. LORENE JOSHUA, et al KATHERINE KNIGHT, et al r\" DESEer'\" ... ~ . .i .. G ORDER Yesterday, I received a letter and motion from Joshua's counsel requesting an extension of their deadline for responding to PCSSD's motion for approval of a middle school site. Joshua - requested a new deadline of December 6, 2002, in order to allow the ODM up to and including December 3, 2002, to report to the panies regarding the motion. Joshua's request for an extension is GRANTED. IT IS SO ORDERED this 19th day of November, 2/4. u)~L=-= Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET ~LIANCE WITH~ULE 58 AN~  oN //~MJ;)::) sv~~~g,~ 708 Office of Desegregation Monitor One Union National Plaza 124 West Capitol Suite 1895 Little Rock, AR 72201 de Case: 4:82-cv-00866 FILED u S DISTRICT COURT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NOV 2 5 2002 WESTERN DIVISION JAMES W. McCORMACK, CLERK By: DEP CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. \"MRS. LORENE JOSHUA, et al. KATH;ERINE KNIGHT, et al. ORDER RECEIVED DEFENDANTS NOV 2 6 2002 INTERVENORS DFFICE0F INTERVENORS DESEGREGATION MONITORING The Court has received the 2002-2003 budget for the Office-of Desegregation Monitoring. The budget is attached to this Order for the parties' review. The parties have to and including fifteen days from entry of this Order to file objections regarding the proposed budget. ,\\ IT IS SO ORDERED tlris lS_ day ofNovember, 2 1 00/ ~---------------- -- / 4 ~ - UNITED ST ATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 A~79C)) FRCP , 0 N / /-e,..S--O ~ \\., Q,0._, \u0026amp;-J 3 -Office of Desegregation Monitoring United States District Court  Eastern District ot Arkansas Jls. Marshall, Federal Monitor November 20, 2002 The Honorable William R. Wilson, Jr. United States District Coun 600 West Capitol, Room 423 Little Rock, AR 72201 Dear Judge Wilson: One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, Arkansas 72201 (501) 376-6200 Fax (501) 371-0100 Attached is the ODM budget for 2002-03, which reflects your requirements. The format of the budget document follows that of our previous budgets, including annotations to explain revenue calculations, definitions of budget categories, and the budgeted allocations for the year by category. Revenue for the year is apportioned among the three school districts according to the previous year's October 1 enrollment. Once the October 1, 2002 enrollment is known, we will adjust each district's contribution to conform to those figures. As is our practice, we credit the difference in budgeted expenses and actual expenditures proportionately to the school districts according to each district's pro-rated contribution to our budget. If you or the parties should need any additional information, I will gladly provide it. Sincerely yours, ~77(~ Ann S. Marshall ~ v\u0026lt;c: The Honorable J. Thomas Ray Enc. - - - OFFI CE OF DESEGREGATION MONITORING: BUDGET FOR 2002-03 i i ' I I l I I I I REVENUE Sta te of Arkansas LR SD Budget allocation Minus credit from previous year Equals LRSD's share of the budget NL RSD 2001-02 2001-02 2002-03 BUDGET ACTUAL BUDGET 200,000.00 200,000.00 : 200,000.00 241,568.62 241 ,568.62 181 ,288.00 70,1 00.35 70,100.35 43,979.00              ,o       ..             u 171,468.27 171,468.27 : 137,309.00 I Budget allocation 87,824.70 87,824.70 i 65,909.00 Minus credit from previous year 1.. ..... 25,485.69_ _ ....... 25,485.69 .. i15'989_00. . Equals NLRSD's share of the budget I 62,339.01 62,339.01 ! 49,920.00 PC SSD Budget allocation Minus credit from previous year 177,677.68 , 177,677.68 133,341.00 ....... 51 ,559.96 .. \\ ........ ?.:.:~~.~.:~ ........... ~~:~.~.:~ .. Equals PCSSD's share of th~_b u_d_g_et~1_ _1_ 26_,_1_1_7. 7_2--+-_126,_11_7.72~ ; _ 1_0_0_,9_9_3_o._o___. l I Int erest 0.00 I 10,554.71 ' 0.00 I I I I I To tal Revenue 707,071 .00 717,625.71 ! 580,538.00 No te: The sum of the credits in the above chart is the unspent amount of our previous year's budget, luding bank interest earned. Every budget cycle, QOM applies this amount toward each school trict's budgeted allocation. Both that allocation and the credit are determined for the proposed dget by the previous year's October 1 enrollment numbers, then adjusted accordingly when the rollment numbers for the current year become available. inc dis bu en EXPENDITURES 2001-02 2001-02 2002-03 BUDGET ACTUAL BUDGET C ommunications 10,000.00 i 9,679.11 I 9,700.00 i 1 D ues and Fees 4,000.00 1,763.00 ; 439.00 I I E quipment 6,000.00 2,262.59 i 0.00 Fo od Services 200.00 212.89 ! 0.00 M anagement Services 20,000.00 2,350.00 : 5,000.00 ! p eriodicals 4so.oo I 301 .94 ' 80.00 ! p rinting \u0026amp; Binding 6,000.00 i 5,076.56 6,000.00 Pr of \u0026amp; Tech Services 6,500.00 j 1,655.00  1,700.00 R ent 46,231.00 \\ 46,230.96 47,896.00 I R epairs \u0026amp; Maintenance 1,000.00 379.73 : 400.00 I R I esource Library 200.00 ! 447.83 : 0.00 ! s alaries 469,296.00 443,296.24 i 410,770.00 B enefits 109,794.00 100,616.05 ; 91 ,166.00 ' , St aff Development 1,000.00 89.34 : 0.00 ! ' s upplies 7,750.00 7,067.09 6,643.00 , Tr avel 18,000.00 4,078.10 200.00 In surance 650.00 -197.00 544.00 T otal Expenditures 707,071.00 625,309.43 i 580,538.00 ANNOTATED ODM BUDGET FOR 2002-03 REVENUE The Court's Interim Order of June 27, 1989 required that: ... [T]he amount previously ordered for the Pulaski County Educational Cooperative (Co-op) [$200,000.00] shall be applied toward the budget of the office of the Metropolitan Supervisor .... The balance of the budget will be apportioned among the school districts on a per pupil basis .... Eighth Circuit Order of December 12, 1990: ... [T]he office previously known as the Office of the Metropolitan Supervisor will be :rreconstituted as the Office of Desegregation Monitoring .... 10/1/01 % of Total 2002-03 Enrollment Enrollment Budget Allocation LRSD 25,367 I 47.64 1 1a1.2aa NLRSD 9,220 17.32 I 65,909 PCSSD 18,657 35.04 I 133,341 I 1 State of AR N/A I N/A I 200,000 Total 53,244 100.00 580,538 2001-02 Credit {Budget not spent)  I 43,979 ! 15,989 \\ 32,348 I N/A j 92,316 I 2002-03 Budget Payment 137,309 49,920 100,993 200,000 488,222 This chart shows that the 2002-03 Budget Allocation, the 2001-02 Credit, and the 2002-03 Budget Payment are apportioned among the three school districts according to last year's October enrollment numbers. After the final 2002-03 enrollment has been tallied, we will adjust the figures accordingly and notify each district of the exact amount due for its share of ODM's 2002-03 budget. Described below is the step-by-step process, reflected in the chart above. that we use to determine each district's contribution to the ODM budget: 1. The State of Arkansas' contribution ($200,000.00) is subtracted from ODM's total budget. 2. Based on the previous year's October 1 enrollment, the districts are charged their pro rata share of OD M's budget (minus the state's contribution). 3. Each district is credited with its pro rata share ( or estimated share) of ODM' s unspent budget for the previous year. 4. Each district contributes that sum to ODM' s budget or, if the credit has been estimated, each district will be notified of the exact amount due for its share of ODM' s budget before the close of the current fiscal year. Page 3 EXPENDITURES Note: Definitions of expense categories are based on the Arkansas School Financial Accounting Manual. Communications: Services provided by persons or businesses to assist in transmitting and receiving messages or infonnation. This category includes telephone services as well as postage machine rental and postage. I 2001--02 Budget 2001-02 Expenditures i 2002-03 Budget i .__ 9,679.11 I s.100.00 I _____ ......._ ________ __._ ___ 10,000.00 Dues and F~es: Expendirures or assessment for membership in professional or other organizations or associations or payments to a paying agent for services provided, such as conference registration fees. j 2001--02 Budget I 2001-02 Expenditures I 2002-03 Budget ! J._ __4_ ,o_o_o.o_o ....I.. _____1 _,_76_3_.o_o .i... _ ___ 439.oo I Equipment: Expenditures for the initial, additional, and replacement items or equipment, such as furniture and machinery. I 2001--02 Budget I 2001-02 Expenditures I I 6.000.00 i 2.262.ss I 2002--03 Budget ! I 0.00 j Food Services: Expenditures for fooci or preparation and serving of food, which may include catering. I 2001--02 Budget 2001-02 Expenditures I I 200.00 I 212.ss I 2002-03 Budget ! 0.0Q II I Management Services: Services performed by persons qualified to assist management either in the broad policy area or in general operations. This category includes consultants, individually or as a team, to assist the chief executive in conference or through systematic studies. ! 2001--02 Budget I 2001-02 Expenditures I 2002--03 Budget ; \\'--___2 0_o,oo_.o_o-'j- _____2 .3s_o.o_o-'l- ____s, ooo.oo ! Page4 Periodicals: Expenditures for periodicals and newspapers for general use. A periodical is any publication appearing at regular intervals ofless than a year and continuing for an indefinite period. I 2001-02 Budget ! 450.00 I 2001-02 Expenditures I 301 .94 I 1 i 2002-03 Budget ! ao.oo I I Printing and Binding: Expenditures for job pnntmg and binding, usually according to specifications. This includes the design and printing of forms as well as printing and binding publications. 2001-02 Budget I 2001-02 Expenditures ! 2002-03 Budget e.000.00 I s.076.56 I e.000.00 Professional and Technical Services: Services which by their nature can be performed only by persons with specialized skills and knowledge. 2001-02 Budget I 2001-02 Expenditures 2002-03 Budget e.soo.oo I 1.6ss.oo 1,700.00 Rent: Expenditures for leasing or renting land and buildings for both temporary and long-range use. 2001-02 Budget / 2001-02 Expenditures I 46,231.00 I 46,230.96 I 2002-03 Budget ! 47.896.oo I Repairs and Maintenance: Expenditures for repairs and maintenance services which restore equipment to its original state or are a part of a routine preventive maintenance program. This includes service contracts and contractual agreements covering the maintenance and operation of equipment and equipment systems. 2001-02 Budget 2001-02 Expenditures 1,000.00 379.73 I 2002-03 Budget I 400.00 i Resource Library: Expenditures for regular or incidental purchases of library books available for general use. ' 2001-02 Budget 2001-02 Expenditures i 200.00 447.83 I ! 2002-03 Budget ! I 0.00 ; I Page 5 Salaries: Salaries are the amounts paid to employees who are considered to be in positions of a permanent or temporary nature. 2001-02 Budget 2001-02 Expenditures 2002-03 Budget I 469,296.00 443,296.24 410,TTO.OO I Below is a breakdown of each employee's budgeted 2002-03 salarv Name of Employee 2001-02 Salary I 2002-03 Salary Ann Marshall 116,688.00 116,688.00 I Melissa Guldin 1 54,368.00 21,842.00 Gene Jones 2 57,021 .00 57,021 .00 Margie Powell 67,960.00 67,960.00 Horace Smith 67,960.00 67,960.00 r\"'011, -,ai':-.c, : I 51 ,011 .00 51,011 .00 Linda Bryant 28,288.00 28,288.00 Total 443,296.00 410,TTO.OO 1Melissa Guldin retired on September 30, 2002. 2Gene Jones, who works 4/5 time, elected to receive payment for annual insurance premiums in lieu of the insurance benefits; his salary reflects that decision. Benefits: Benefits are the amounts paid in behalf of employees and not included in the gross salary, but are over and above. Such payments are fringe benefit payments. 2001-02 Budget \\ 2001-02 Expenditures I 2002-03 Budget 109.794.oo 1 100.s1s.os I 91 .166.oo I Below is a breakdown by category of each employee's 2001-02 budgeted fringe benefits: Name ! Car Social I Retire- Hospital- Life I Dental I Hospital I I Short Total I Allowance Security ment -ization Ins. I Indemnity Term Benefits I Brown i 1.800.00 I 6,981 .88 Ii 14,218.56 2,253.12 44.16 I 238.56 : 60.96 1 62.88 25,660.12 Guldin ! 300.00 I 1,693.83 ! 1,667.04 563.28 11 .04 I 59.64 i 15.24 I 15.72 4,325.79 Jones i 960.00 4.435.55 l -0- -0- .o- I .o- I .o- I I -0- 5,395.55 Powell !; 1,200.00 s .290.14 I 82,99.20 2,253.12 44.16 i 238.56 60.96 \\ 62.88 I 17,449.62 i I Smith I I 62.88 ! I 1,200.00 5,290.74 I 8,299.20 2,253.12 44.16 238.56 60.96 ! 17,449.62 Ramer I 0.00 3,902.34 l 6,121.32 2,253.12 44.16 !i 238.56 60.96 I 1 62.88 12,683.34 Bryant ! 0.00 2,164.03 i ! I 3,394.56 2,253.12 27.60 II 238.56 60.96 j 62.88 8,201.71 Total I 5,460.00 29,759.11 I 41,999.88 11,828.88 215.28 I 1,252.44 320.04 I 330.12 91,165.75 Page 6 I ' I I I I I I ' i I ! I i Staff Development: Services performed by persons qualified to assist in enhancing the quality of the operation. j 2001-02 Budget j I 1,000.00 I 2001-02 Expenditures I 2002-03 Budget I 89.34 ! 0.00 / I Supplies: Expenditures for all supplies for the operation, including freight and cartage. Amounts paid for material items of an expendable nature that are consumed, worn out, or deteriorated in use or items that lose their identity through fabrication or incorporation into different or more compiex units or substances. \\ 2001-02 Budget \\ 2001-02 Expenditures j 2002-03 Budget ! I 7,750.00 I 1.001.09 I s.643.oo I Travel: Expenditures for transportation, meals, hotel, and other expenses associated with traveling or business, such as parking fees. Payments for per diem in lieu of reimbursements for subsistence (room and board) also are charged here. ! 2001-02 Budget I 2001-02 Expenditures i 2002-03 Budget , I I 18,000.00 j 4 ,078.10 j 200.00 I Insurance: Expenditures for all types of insurance coverage such as property, liability, fidelity, as well as the costs of judgments. 2001-02 Budget \\ 2001-02 Expenditures ! 2002-03 Budget ! I 650.00 j (197.00) j I 544.00 ! Page7 EAsTMRG(f%5/2 IN THE UNITED STATES DISTRICT COURT ISTRJcT ARKfJSA.s EASTERN DISTRICT oF ARKANSAS Nov WESTERN DIVISION 2 5 20 02 -~:_MES W. McCORMACK, ~--- CLERK LITTLE ROCK SCHOOL DISTRICT FF DEPCLERI( V. CASE NO. 4 : 82CV00866 PULASKI COUNTY SPECIAL SCHOOL 'DISTRICT NO . 1, ET AL. MRS. LORENE JOSHUA, ET AL . KATHERINE KNIGHT,, ET AL. RECEIVED NOV 2 6 2002 OFACEOF DESEGREGATION MONITORING DEFENDANTS INT ERVEN ORS INT ERVEN ORS Motion for Recusal of Dis_tric\\ Judge  and .for Vacating of : Ord~rs., Rulings and -nidgments  The Joshu a Jntervenors. respectfully move for the entry of - orders providing for the recusal of the court (Hon . Wil l iam R. Wils.on, Jr.) and for the vacating of all orders , rulings and judgments, including the memorandum and j udgment of September 13 , 2002, e ntered subsequent to the reass i gnment of this case to t his court (Judge Wilson) . This motion is based upon 28 U. S . C,455(b) (2), Rule 60(b) (6), Fed . R. Civ. Pro., the follo~ing allegations, the decl aration of Robert Pressman , the affidavits of Rickey Hicks and John W. Walker , and the accompanying memorandum. 1 . On November 30, 1982, the Little Rock School District filed this case , Civil Action No . 82 - 866. The Honorable Henr y L . Woods was then assigned to handle the matter . 2. On March 23 , 1984 , the Court of Appeals for t he Eighth 1 - - - Circuit held that Judge Woods had erred, when he refused to allow the intervention in this case of class representatives of African American students in the LRSD , NLRSD, and the PCSSD (known thereafter as the \"Joshua Intervenors \" ). 3 . . On April 24, 1987, the LRSD moved for the recusal of Judge Woods pursuant to 28 U.S . C. 455a . Judge Woods denied this motion on April 30, 1987 (see 660 F . Supp. at 624). 4 . On April 30, 1987, Judge Woods also denied the Joshua Intervenors' motion for recusal based upon 28 U.S . C. 455(b) (2). See 660 F. Supp. At 636-37. 5. Employing the procedural device of a writ of mandamus, the LRSD on August 24, 1987 sought appellate review of Judge Woods' denial of its  recusal motion . The Jo.shua Intervenors pursued - appellate review of the denial of their recusal motion in an appeal addressing several district court judgments and by supporting the LRSD petition. 6 . Then in private practice, his honor, William R. Wilson , Jr . , was retained by Judge Woods to ~epresent the judge in the Court of Appeals with regard to the mandamus petition . See Attachment A. In representing Judge Woods, h.is honor served as a lawyer in this case. See Order Denying Motion for Hearing Regarding Relevance of 28 U. S . C. 455 to the Present Proceedings, Oct . 29, 2002, at 2 ( \" I entered the case, at that time , fo:r: the limited purpose of representing Judge Woods before t he Eigh t h Circuit i n connection with the request that he be disqualified . 11 [ emphasis added]) 2 7. The Court of Appeals for the Eighth Circuit has construed 28 U.S.C. 455(b) (2) to require recusal of a judge in a case in which he or she served as a lawyer while in private practice. In construing 455(b) (2), this court has erred by limiting its focus to language in which the Court of Appeals considered whether (b) (2) might have an even broader scope, deciding that his honor's -involvement in 1987 did not fall within that possible additional prohibition. 8. A district judge has an independent responsibility to consider the applicability of 28 U.S.C. 455(b) (2). Upon receiving reassignment of this case, this court did not orally or in writing raise with the parties or rule upon the applicability of Section 455, in the light of his honor's earlier \"appearance in the .case\" - as a lawyer. Order, Oct . 29, 2002, at 4. 9 . Robert Pressman first learned of his honor's earlier role as a lawyer in this case on October 18, 2002 , while doing research on the matter of recusal; this research was prompted by Mr. Pressman's learning of the court's employment of Ms. Janet Pulliam as a law clerk. On October 22, 2 002, when reporting on this research to John W. Walker, Mr. Pressman also mentioned his rionor's earlier role in this case. Mr. Walker had forgotten the matter. See Declaration of Ropert Pressman (Attachment B) and Affidavit of John W. Walker (Attachment C)to this Motion. Attorney Rickey Hicks was not aware of his honor's earlier service until late October, 2002 (Attachment D) . The motion has been filed within a reasonable period ~fter the foregoing events. 3 10. In the 14-year period from the time that hi$ honor served as a lawyer in this case (November 6, 1987)until the reassignment of this case to his honor (January 3, 2002): (a) the Court of Appeals entered at least 13 published opinions in this case1 and the district court at least 5; 2 (b) the district court clerk's office docketed thousands of pleadings and other items in this case [see also Memorandum Opinion of September 13, 2002, at 9 n. 15 [-The pleadings in this case alone now occupy hundreds of feet of file space in the clerk ' s office. ' J (c) Judge Wright received approximately 743 exhibits; (d) the Office of Desegregation Monitorin~ submitted at least 49 written reports; ( e) Joshua Intervenors' lead counsel, John W. Walker, r~presented clients in many hundreds of other cases and discussed civil rights and other legal issues with thousands of persons who contacted his office. 11 . Implementation of 28 U.S . C. 455 requires that the court recuse . 12. In the circumstances of this case, governing legal standards require that the court vacate all orders , rulings and judgments entered s ubsequent to the court ' s receiving reassignment These decisions are 92 1 F . 2d 1371; 928 F . 2d 248; 949 F . 2d 253; 971 F . 2d 160 ; 17 F . 3d 260; 56 F. 3d 904; 60 F . 3d 435; 83 F . 3d 1014; 109 F . 3d 514; 112 F . 3d 953 ; 127 F . 3d 693; 131 F. 3d 1255; and 148 F . 3d 956 . 2 These decisions are 716 F. Supp. 1162; 726 F . Supp. 1544 ; 769 F . Supp . 1483 ; 769 F. Supp . 1491; a nd 778 F . Supp 1013! 4 . . , J - of the matter. Rule 60(b) (6) provides a vehicle for accomplishing this action. 13. The circumstances referred to in paragraph 12 include the following: (a) After the time that his honor represente' d Judge Woods in. . this case, Judge Woods expressed negative views on the fees for attorneys in the case, particularly the Joshua Intervenors. See 726 F. Supp. At 1554-56; 740 F. Supp at 634, 635; Judge Henry Woods and Beth Deere, 'Reflections on the Little Rock School Case 11 44 Ark. L. Rev. 971, 998, 1000, 1005-06 (1991). (b) In the opinion of September 13, 2002, this court drew upon (at 43) and built upon (at 38-44) Judge Woods' conclusion about attorneys ' fees, al though recognizing that the matter was ,'not - directly relevant to the issue of unitary status ... ' 1(at 40). (c) A neutral observer could reasonably construe this court's conclusions about attorneys fees pa.id to Joshua Intervenors to be that: the fees paid were excessive; the fees paid diminished the educational opportunities of the student .members of the intervening class; additional fees were sought when they should not have been; and additional fees were paid in exchange for an agreement to support the revised plan. (d) It is reasonable to conclude that Judge Woods' views about attorneys' fees in this case had a greater influence on this court, after receiving assignment of this case, . because his honor had earlier assumed an advocacy role for Judge Woods by representing him in this case. 5 r  (e) The Joshua Intervenors' evidentiary presentation in the July, 2 002 hearing was made principaly by lead counsel . John W. Walker. As of this time (or at least by the time of the release of the Memorandum Opinion), this court held negative views about Mr. Walker's earlier role in this case. See sub-paragraph (c). These vi~ws were linked to this court's earlier role as a lawyer in this case. See subparagraph (d). It was unfair and inappropriate for Intervenors' evidentiary presentation to be evaluat~d under this cloud. (f) On appeal,  this court's factual findings will be reviewed under the ~'clearly erroneous'' standard, not de nova. (g) The court's decision in this case is marked by fealty and deference to Judge Henry Woods, the individual whose positions this - court was obligated to champion, when serving as an attorney in this case. WHEREFORE the Joshua Intervenors respectfully pray that this court recuse from this case after vacating all orders, rulings and judgments, entered subsequent to the reassignment of this case to this court, including the Memorandum Opinion and judgment of September 13, 2002. The Joshua Intervenors further pray that this court refer this case to the chief judge for reassignment and grant such other and further relief as the needs of justic~ may require.- Respectfully subrr ted, Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862 - 1955 . 6 \\ ,' / ,)! .v?v/L /.{ I J n W. Wa!ker J[ n W. Walker, 1723 Broadway Little Rock, AR / D~[ /IY. ~ /(JVg-1 P.A. 72206 Mass. 405900 /,J / . ~ f/   ,, i 'f---iL-zA~ I Lk/4 Rlcky .  ks Attorn ~y at Law 501-374-3758 Ark. 64046 1100 North University, Suite 240 Little Rock, AR 72207 501-663.-9900 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Motion has been forwarded to all ~ounsel of record via United States mail, postage prepaid on this ~?--day of November, 2002. 7 !.A.=:l qD91'tG7\"TmRllSIXUT 'P. 0. IKll:11 urn.E:ROCK, AlllC.L'if54.S ,-2,.'\u0026gt;0;! Wl\u0026gt;C. ~ W!l$.ON,Jlll. t ~l'IID!=l\u0026gt;\u0026lt;-t aitOltANNllT. \"1II..'l0N c;.L'll/l).i;;Qllt.'1,( TJMar= O. lllml.2Y SQ1J!1S-\u0026amp;i~ September 8, 1987 RE: L~ttle Rock School Dist . . Petitioner, v. Honorabie Henry Woods, Respondent Eighth Circuit No. 87-2150 Mr- Robert D. St . Vrain Eighth CiJ:'cuit Clerk 511 U\".S. Court and Custom House 1114 Marke~ Street S~. Lou~s, Missouri 63101 Dear ~..r. Sc. Vrain: F. l L E D ----;J SP S 1987~ ROa.ERT D. ST. VRAiN. CLERK tl\u0026gt;LfJOADldtT'Tl!ll.0 ?!UC'TICZ l:'J AL..o.S~ EXPRESS MAIL I have just been retained by The Honorable Henry i.7oods to represent him in the referenced matter_ I.: is my understanding that our . response is due in the Eighth Circuit on or before . Septemb~r 14, 1987. If this is not correct, I would appreciate it if you .would advise me for'thwith. I understand, also, that this letter will suic:e as my \"entry of appearance.\" Again, if this is net: correct, please let me, know as soon 2.s pos.sible. Thank you very much for your consideration_ Cordially, fJ/t~ Wm_ R_ Wilson, Jr. WRWJr:skm. IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 Declaration of Robert Pressman Robert Pressman declares as follows: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. I have undertaken various assignments in this case, at the request of John W. Walker, since the latter part of 1995. 2. On October 15, 2002, d~ring a telephone conversation, John W. Walker i11-formed me of this court's .employment of Ms. Janet Pulliam as a law clerk. He further stated that she had been one of the attorneys for the Little Rock School District in the first phase of this civil action. We discussed my doing research about recusal under 28 U.S.C. Sec. 455, in view of Ms. Pulliam's present and former roles. 3. I then did research at the law library of the New England School of Law in Boston on October 18, 2002. During the course of that work, I noticed in the United States Code Annotated a note on the decision in this case published at 833 F.2d 112. Upon opening 1 that volume to the two-page decision, I noted: William R. Wilsqn, Jr.; Little Rock, Ark. for Judge Woods in mandamus. This entry provided my first knowledge of his honor's involvement in this case while in private practice. 4. On October 22, 2002, I discussed the results of my research on Section 455 in the context of law clerks with Mr. Walker by telephone. I also mentioned the opinion showing his honor's representing Judge Woods on the mandamus issue in this case. At this point, Mr. Walker did not say directly or indirectly that he remembered this fact prior to my mentioning it. 5. A circumstance convinces me that Mr. Walker would have raised the matter of his honor's earlier role in this case had he remembered it. Prior to the July 2002 hearing, Mr. Walker and I had multiple conversations about _our prospects for success on the issues tried before Judge Wright and the is?ues to be tried before his honor. We both voiced pessimism, based upon our perceptions of his honor's record in civil rights  cases. In this light, my conclusion is that Mr. Walker would have at least raised for discussion on these occasions before the July 2002 hearing the matter of seeking recusal, if he had recalled his honor's earlier appearance in this case as counsel. I declare under penalty of perjury that the foregoing statements are truthful and complete. Date Robert Pressman 2 IN THE UNITED .STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DNISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF VS. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, NO. 1, ET AL: DEFENDANT INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL. KA THERINE vv. KNIGHT, ET AL. AFFIDAVIT OF JOHN W. WALKER ~omes now the affiant who states as follows: 1. 2. I did not remember His Honor's appearance in this case in 1987 until some time in October 2002, when Bob Pressman mentioned it to me. Earlier in October 2002, I learned of the Court's employing Ms. Janet Pullium as a lawyer. I discussed this and its possible relatiQnship to recusal on separate occasions with Mr. Pressman and with Mr. Rickey Hicks as well as Ms. Joy Springer of my office. That discussion included no mention of His Honor's e:....rlier role in the case. 3. After the reassignment of this case to this Court, Mr. Pressman and I had several conversations about our prospects. We both had negative outlooks because of our view of the Court's decisions while on the bench. 4. There were other lawyers associated with this case who I did not remember until that memory was refreshed by my review of the pleadings and the decisions in this ATTACHMENTC case after the October 2002 conversations with Mr. Pressman, Mr. Hicks and Ms. Springer. 5. In the period from the time that His Honor represented Judge Woods in 1987 until this case was reassigned to His Honor, my law practice was very active. When.it was assigned to His Honor on January 3, 2002, I was preparing for major surgery. 11 Between 1987 and October 2002, I have represented clients in many htmdreds of other cases and have discussed civil rights and other issues with thousands of persons who contacted my office. . ? Affiant saith nothing fmiher. I COUNTY OF LL/\\ \"'16!~) ) STATE OR ARKANSAS) '): t\u0026amp; Sworn and appeared before me this d '(day of November. 2002. My Commission Expires: 9 \\ t 7; 200:2;; I i  ) ) \"-- 1 _,.. (Lo- _ 1 ) 11.--1-- ; r: / 171'\\( ) n f t . .{, ~ ( JJof.. ,,t( Notary 1fublic ATTACHMENTC IN THE lJNITED STATES DI~TRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL \"DISTRICT NO. l, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 AFFIDAVIT OF RICKEY HICKS Rickey Hicks states as follows: PLAINTIFF DEFENDANTS INTERVENORS INTERVENORs  1. I began to _assist John W. Walker i1_1 the representation of the Joshua Intervenors on or about November 19, 2001. 2. In the latter part of October, 2002, John W. Walker and Robert Pressman discussed with me the fact that the court (Honorable William R. Wilson) had served as counsel in this case by representing Judge Henry Woods on a mandamus issue in 1987. This was the first time I heard or received any information about his honor's earlier service in this case. Affiant saith nothing further. coumY oF lno ILL ' STATE OF ARKANSAS ) ) ) Sworn and appeared before me this J.J-day ofNovember, 2002. :. n /t1J1t,,r ;J_/(/I My Commission Expires: 1\" / /7/ZI uu3 r I r:A_u_/:(LE 0 ~ I ERN o,sf~(CT COURT  \"'CT ARKAiiiSAs IN THE UNITED STATES DISTRICT COURT Nov 2 5 200') EASTERN DISTRICT OF ARKANSASJAM   WESTERN DIVISION By ES w. MccoRMA.  ---- CK, CLERK LITTLE ROCK SCHOOL DISTRICT v. CASE NO. 4: 82CV00866, PULASKI COUNTY SPECIAL SCHOOL -DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET . AL. KATHERINE KNIGHT, ET AL. RECEIVED NOV 2 6 2002  OFFICEOF DESEGREGATION MONITORIHG The Joshua Intervenors' Memorandum in DEFENDANTS INTERVENORS INT ERVEN ORS Support of their Motion for the Vacating of Orders and Recusal This court has acknowledged that in 1987, while in private - practice, his honor appeared in this case as a lawyer. 1 Based upon the inter~retation of 28 U.S.C. 455(b) (2) by the Court of Appeals for the Eighth Circuit, that circumstance disqualified his honor from serving later as a judge in this case. In the light of relevant facts and legal standards, the court should now recuse, after vacati_ng all orders, ruling~ and judgments entered since i receiving this case by reassignmeni. A. Under Eighth Circuit Decisions, A Judge Must Recuse When Assigned a Case In which He Earlier Served as a Lawyer The Joshua Intervenors read Eighth Circuit decisions as 1 See Order Denying Motion for Hearing Regarding Relevance of 28 u.s.c. Sec. 455 to the Present Proceedings, Oct. 2~~ 2002, at 2 (\"I entered the case, at that time, .. \"); at 3 (\" ... my appearance fifteen years 'ago ... \"); at 4 (\" ... my appearance in the case ... \"). 1 interpreting 2.8 U.S.C.455(b) (2) to mandate recusal when a judge is assigned a case in which he earlier served as a lawyer. 2 The text on which intervenors rely is as follows. The trial of this case on the merits actually was delayed three years by various intervening motions, most of which are not relevant here. For example, motions for class cert if- ' i' ication and for consolidation with the Clark litigation concerning desegregation of the Little Rock School District (see Little Rock School Dist. No. 1, 584 F.Supp. 328, 334-35 (E.D.Ark. 1984), were denied, and those rulings are not challenged on appeal. Patterson does challenge the refusal of Judge Woods to recuse himself, arguing that recusal was required under 28 U.S.C. Sec. 455(b) (2) because Judge Woods' former law partner, during the time he was associated with the firm, represented parties that sought to intervene in and eventually participated as amicus curiae in the Clark litigation. We agree with Judge Woods that it follows from the denial of the consolidation motion that the  matter in controversy' here cannot be the same as in Clark and that the statutory language on recusal relied on by Patterson thus does not apply. Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8th Cir. 1985) (emphasis added) We have previously held, in an appeal involving the same judge and the same connection with Clark, that where the trial court denies consolidation of a related case which might have provided a basis for recusal, 11  it follows ... that the  matter in controversy' here cannot be the same ... and that the statutory language on recusal . ... thus does not apply.\" Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8thcir. 1985). Patterson involved an individual racial discrimination suit by an employee of LRSD, and the Joshua Intervenors urge us to distinguish Patterson on the ground that this case is intertwined with Clark in a way that Patterson was not. Under the Joshua Intervenors' interpretation, the matter in controversy' contemplated by the recusal statute may extend beyond the litigation conducted under the same docket number where the issues in the dispute are sufficiently related. Since this case inevitably involves consideration of desegregation within the LRSD  -- the focus of the Clark 2 . Sec. 455 (b) (2) reads in pertinent part: \"He shall also disqualify himself in the following circumstances ... (2) Where in private practice he served as lawyer in the matter in controversy .... 11 2 litigation -- the Joshua Intervenors conclude that 455(b) (2) requires recusal. Even if we accept appellants' argument that different cases may constitute . the same matter in controversy, ' an interpretation apparently precluded by Patterson, .the question of what kinds of cases are sufficiently related for the purposes of Sec. 455 (b) (2) would remain a question of judgment . r  and degree. We cannot say that the trial judge I s former law t' partner's submission of an amicus. brief in a case involving, to a large extent, different issues and different remedies two decades ago ~equires recusal under Sec. 455(b) (2), nor do we believe that Congress intended such a result. LRSD v. PCSSD, 839 F.2d 1296, 1301-02 (8 th Cir. 1988) .... To determine whether 455(b) requires recusal in this case, I must decide whether the claims filed by Alaska fishermen in Apex's bankruptcy proceeding .as a result of the oil spill are the same  matter in controversy' as Artoc' s disputed claim for payment of the assigned invoices. We have previously noted that, if different cases may ever constitute the same matter in controversy for purposes of Sec. 455(b) (2), it is only when  the issues in dispute are sufficiently related. 1 Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 839 F.2d 1296, 1302 (8th Cir.), cert. denied, 488 U.S. 869 ... (1988). In Re Apex Oil Co., 981 F.2d 302, 303-04 (8th cir. 1992) ( individual opinion of Judge Loken denying motion for disqualification) These three decisions c;::oncerning 455 (b) (2) touch upon two  ' situations. The first is where the earlier service as a . lawyer was in the same case to which the judge is later assigned. The second instance is where the earlier service as a lawyer was in a different case than the judge's current assignment, but, it is argued, the separate cases or issues are so closely related to the current assigned case that recusal is also required by Section 455 (b) (2). As to the first situation, Intervenor's interpretation of the 3 Eighth Circuit language is that the judge must recuse, if he\\she or a partner earlier served as a lawyer in the same case. As to the second situation, Intervenors' interpretation is that the Eighth Circuit has not made a . holding identifying a sufficient relationship, but has left open  the possibility that such a tl situation requiring Section 455(b) (2) recusal might exist. Intervenors' position regarding the Eighth Circuit standard finds support in United States v. Cleveland, 1997 WL 222533, (E.D. La.), at 8-9, relied upon by this court in its Order of October 29, - 2002, at 3-4. That court identified the Eighth Circuit rule as follows (emphasis added]: The court notes that the one circuit to have addressed the issue explicitly has read the  matter in controversy' requirement of Section 455(b) (2) narrowly. In Patterson v. Masem, 774 F.2d 251, 254 n. 2 (8th Cir. 1985) and Little Rock School District v. Pulaski County Special School District No. i, 839 F.2d 1296, 1301 (8thCir.), cert. denied, 488 U.S. 869 (i988), the Eighth circuit rejected the argument that \"the  matter in controversy' contemplated by the recusal statute may extend beyond the litigation conducted under the same docket number where the issues in dispute are sufficiently related.\" Little Rock School District, 839 F.2d at 1302. Thus, under Eighth Circuit law, the  matter in controversy' requirement is triggered only if the judge or his or her former partner worked on the case over which the judge is presently presiding.  In both Patterson and Little Rock  School District, the Court held that a judge was not required: to disqualify himself pursuant to Section 455(b) (2) when his former law partners had filed amicus curiae briefs in a case that helped 'form part of the historical background of the dispute' before the Court. Little Rock School District, 839 F.2d at 1301. In private practice, his honor had \"worked on the case\" reassigned to him upon Judge Wright's withdrawal. Recusal was 4 mandated under the Eighth Circuit's bright line rule. 3 Intervenors respectfully submit that this court erred in its ' application of 455(b) (2) in its October 29, 2002 Order. The court ignored the bright line rule; rather, its focus was on the appellate court's discussion of whether 455(b) (2) was even broader, ,, reaching some situations in which there was an overlap between different cases. The court ruled that its earlier involvement here did not fall  within the parameters of this \"standard. 11 This incomplete analysis yielded a faulty overall 'conclusion. The nature of school desegregation cases shows a problem with approaching the matter in terms of whether tha earlier service as counsel in the case involved \"any of the issues (now] pending before (the judge] \"Order, Oct. 29, 2002, at 4. This species of litigation may involve six \"Green factors, \" or even more elements, where, as here, the  parties' settlement is more expansive. The court's language might be interpreted to suggest that one could be an advocate in a case in private practice on some such issues, yet be able to later serve as a judge in the same case on others. Respectfully, \"we [do not] believe that Congress intended such a result.\" Little Rock School District, 839 F.2d at 1302. Finally, legislative history supports the interpretation of 455 (b) (2), adopted by the Eighth Circuit and urged here by 3 United states v. DeTemple, 162 F.3d 279 (4th Cir. 1998), a criminal prosecution, cited in the October 29 Order at 3, was not a case in which the judge while in private practice, or a partner, had made an appearance in the current prosecution. 5 intervenors. Prior to 1974, 455 consisted of a single paragraph. In April 1973, the Judicial Conference of the United States adopted for federal judges the American Bar Association's Code of Judicial Conduct. This code was ' more rigorous than Section 455. The 1974 revisions to 455 largely conformed the statute to the ABA Code ,, relating to judicial disqualification. The legislation did add 455 (b) (3) to deal explicitly with the issue of an individual coming to the bench from service as a government lawyer. The Senate and House reports contain this exp~~nation . ... subsection (b) (3) carries forward from subsection (b) (2) a required disqualification where the judge as a government lawyer, had acted as counsel, adviser, or material witness concerning the proceeding. In addition, the judge must disqualify himself where, as a  government lawyer, he had expressed an opinion concerning the merits of the particular case in controversy ... See 197 4 U.S. Cong. Code \u0026amp; Adm in. News, 6351-56. B. His Honor Served in this Case as a Lawyer by Representing Judge Woods in the Court of Appeals in 1987 His honor has, as noted, acknowledged his service as a lawyer in this case while in private practice. See supra at n. 1. The I LRSD, however, seemin~ly suggests: that the petition for a writ of mandamus involved a different case -- by the repetitive use of the phrase \"the mandamus action.\" See LRSD Memorandum Brief, Oct. 30, 2002, at 3-5; see also at 4 (\"the mandamus case\"). Any such contention is without merit. The \"Petition for Writ of Mandamus\" employed here in 1987 was not a separate civil action or case, but instead a procedural mechanism used to bring an issue in the underlying litigation, this case, to the Court of Appeals for the Eighth Circuit for review. 6 In Re Kansas Public Employees Retirement System, 85 F. 3d 1353, 1355 (8th Cir. 1996) (petition for writ of mandamus seeking disqualification of district judge; court refers to \"basic underlying suit\" and the \"underlying suit\"; at 1355 and inn. 2); Madden v. Myers, 102 F.3d. 74, 76-77 (3rdCir . . 1996) (\"A writ of ,, mandamus, which is authorized by the All Writs Act, 28 u.s.c. Sec . 1651, . constitutes a procedural mechanism through which a court of appeals reviews a carefully circumscribed and discrete category of district court orders. 11 [footnotes and citations omitted]); United States v. Martin, 96 F.3d 853, 854 (7thCir. 1996) (\"When as is normally the case in the federaL courts mandamus is being sought against the judge presiding in the petitioner's case, - it is realistically a form of interlocutory appeal .... 11 ; \"It is a procedural step in the criminal litigation, like an interlocutory or final appeal or a civil contempt proceeding against a witness.\"); Green v. Nottingham, 90 F.3d 415, 417 (l0thCir. 1996) (\"A mandamus proceeding under section 1651, although characterized as an original proceeding, is not an independent grant of  ' jurisdiction, but an aid of appe,llate jurisdiction. 16 Charles A. Wright et al., Federal Practice and Procedure, Sec. 3932 (1977) (quotation omitted). As such, mandamus is part of the litigation of a case . \" ) . 4 In the 'Petition for Writ of Mandamus,' August 24, 1987, the LRSD recognized that the mandamus approach was a part of a single underlying case. At 5 ( ' seeking writ of mandamus directing Judge Woods '' to recuse himself from presiding over these proceedings . . . '' ( emphasis added) ; The LRSD supporting brief stated: '' This Petition seeks to have the Honorable Henry Woods disqualified from presiding over this scho~l desegregation case.\" 7 c. The Motion for Recusal Should Not Be Rejected as Untimely The motion should not, for two reasons, be denied as untimely. 1. The Court Had an Independent Obligation to Address the Matter of Recusal 28 U.S.C. 455(a) and (b) identify various situations in which a judge \"shall disqualify himself [or herself] .... 11 Unlike 28 U.S.C. 144, 455 is, not conditioned on a party's raising an issue of bias. Rather, in keeping with its text, Section 455 has been characterized as \"self-enforcing on the part of the judge.\" Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, .. .  . . 1052 (5th Cir. 1975). \"[I]f the judge sitting on a case is aware of grounds for recusal under Section 455, that judge has a duty to recuse him~elf or herself.\" United States v. Sibla, 624 F.2d 864, 868 (9thCir. 1980). See also Roberts v . Bailar, 625 F.2d 125, 128 (6th Cir. 1980) (same); United States v. Davidson, 482 F.Supp. 8.27, 829 (W.D. Okla. 1979) (\"self-enforcing on the part of the judge\"); Bradley v. Milliken, 426 F.Supp. 929, 931 (E.D.Mich. 1977) ( 11 28 U.S.C. Sec. 455 . places the issue of disqualification squarely upon the presiding judge.\") In fulfilling its \"duty,\" the court could have raised the matter here by describing his honor's prior-involvement in the case orally, or in writing, or by addressing it in an opinion. 5 In (at VII). See Attachment to this Memorandum. 5 Little Rock School District v. Arkansas Bd. of Educ., 902 F.2d 1289 (8thCir. 1990) (opinion by Judge Richard Arnold on whether he should recuse on several appeals); In Re National Union Fire Ins. Co., 839 F.2d 1226, 1231 (7thCir. 1988) (\"The best practice is to disclose the details that the judge deems significant, to make a decision by one's own lights, and let 8 either case, the Joshua Intervenors would have been on notice of the matter and had the opportunity to address it, in the latter instance by seeking reconsideration (if the court had declined to recuse). The court did not, however, openly address the matter. 6 Intervenors' motion of October 25, 2002, sought a hearing on the recusal issue. Given the earlier silence on the matter, the motion asked that the court indicate whether upon assignment of the case his honor had considered his earlier role and, if so, the basis for his conclusion that 455(b) (2) did not require recusal. This did not seek an advisory opinion as later argued_ by LRSD, but instead the court's ruling or opinion on a matter it had a \"duty\" to address, the statute being self-executing. The court chose not to respond to these questions directly in its October 29 ruling. Nevertheless, it is our supposition from the content and the tone of that Order and the Order of November 12, 2002, that the court did recall its earlier service in this case as a lawyer, upon receiving this case by reassignment. On this supposition, which we do not, ;for multiple reasons, assert to be \"a lead pipe certainty,\" the failure of Joshua Intervenors to  raise the issue before the July hearing was the product, we respectfully counsel speak or keep silence as they will.\"); Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1416 (Fed. Cir. 1989) (district judge made prompt oral disclosure of facts and her decision that she need not recuse). 6 The ''Commentary\" to Canon 3(E) (1) of the ABA Code of Judicial Conduct provides: ' A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the que-stion of disqualification, even if the judge believes there 1s no real basis for dis~ alification.' 9 submit, of the court's silence, despite the self-executing nature of Section 455. 7 2. There Was Other Good Cause for Delay in Raising the Issue Joshua Intervenors did not raise the recusal issue before the July 2002 hearing. However, there is \"good cause\" for failing to - file at an earlier time. Holloway v. United States, 960 F.2d 1348, 1355 (8 t h Cir. 1992). Mr. Pressman and Mr. Hicks were not aware of the court's earlier role in this case until the latter part of October 2002. Mr. Walker had forgotten the matter; his memory was refreshed by Mr. Pressman's inquiry on October 22, 2002. 8 Objective bases render entirely reasonable Mr. Walker's sworn statement that he had - forgotten the court's earlier role. There was_ a tremendous level of activity in this case in the 14 year period between his honor's participation in the case in private practice and its reassignment to him in January 2002. Moreover, this activity was but one part of Mr. Walker's extensive practice. Furthermore, because Mr. Walker and Mr. Pressman were openly ;pessimistic about the prospects for success in his honor's court in their discussions before the July. 2002 hearing (see Pressman Declaration), it is unreasonable to conclude that Mr. Walker would not have at least raised the 7 Mr. Pressman was not aware of the court's prior role until stumbling upon this fact on October 18, 2002; and Mr. Walker did not recall it, until Mr. Pressman mentioned the point on October 22, 2002. See declaration and affidavit attached to the current motion. Mr. Hicks was unaware of this point until late October, 2002. Affidavit attached to motion.  8 See affidavits and .declaration attached to motion. 10 - possibility of seeking recusal for discussion, had he remembered his honor's earlier role in this case. See Motion, para. 10; Pressman Declaration, para. 5; Walker Aff., paras D. Prior to Recusing, th' e Court Should Vacate Orders, Rulings and Judgments Entered Since Receiving Assignment of the Case In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 862-64 (1988), the Supreme Court addresses the question of remedies ~ where recusal is required. Although 455 defines the circumstances that mandate disqualification of federal judges, it neither prescribes nor prohibits any particular remedy for . a violation of that duty. Congress has wisely delegated to 'the judiciary the task of fashioning the remedies that will best serve the purpose of the legislation ... [~t 862] 455 does not, on its own, authorize the reopening of closed litigation. However, as respondent and the Court of Appeals recognized, Federal Rules of Civil Procedure 60(b) provides a procedure whereby, in appropriate cases, a party may be relieved of a final judgment ... (at 863,footnote omitted) ..... we conclude that in determining whether a judgment should be vacated for a violation of 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the ri~k that the denial of relief will produce injus~ice in other cases, and. the risk of undermining the publ_ic' s confidence . in the judicial process ... [at 864] Intervenors respectfully su}:)mit that application of these standards warrants vacating of all orders, rulings, and judgments subsequent to the reassignment of this case to his honor. Joshua Intervenors rely upon the factor of ~injustice to [a party} in the particular case,'' namely, these intervenors. Where, as here, a party appeals a district court judgment, the 11 factor of : injustice r: (or prejudice) to a party may depend upon the issue(s) which will be the subject of the appeal. If the appeal challenges the granting or denying of a motion for summary judgment, for example, the appellate court can likely address an ,'injustice, '1 the matter being subject to de novo review. Parker v. Connors Steel Company, _855 F.2d 1510, 1526 (11th Cir. 1988); In Re School Asbestos Litigation, 977 F. 2d 764, 786,787 (3 r d Cir. 1992). In contrast, matters subject to only \"'deferential review\" on appeal _ are \"more problematic. 11 In Re School Asbestos Litigation, 977 F. 2d at 787. The court's memorandum opinion of September 13, 2002 contains many pages of factual findings. While the appeal is at an early stage, it appears to Intervenors' counsel that it will involve a __ challenge to the correctness of some of the court's findings of fact, both those which are more specific and those which are summary in -nature. ( These contentions would be subject to \"' deferential review '1 ( In Re School Asbestos Litigation, 977 F. 2d 764, 787 (1992) .:. - the \"' clearly erroneous 11 standard. Lead counsel John W. Walker presented the vast bulk of intervenors evidence _before his : honor. This court viewed him through a particulai lens; it was an unfavorable image due to the court's perception of his role regarding attorney's fees. Moreover, it was a perception rooted in his honor's's earlier representation EXAMPLES: at 94(#22), at 100(#12), at 101 (#15,#16), at 102(#19), at 104 (#22), at 107(#27), at 108 (#28), at 126(#10), at 128(#13, at 129(#16), at 133(#24), at 143(#9), at 149(#19)~ 12 of Judge Woods, in this case, while in private. 10 This situation causes ~-injustice\" (Liljeberg) because findings of fact will be subject to only _a limited review on appeal. To be sure, Judge Woods and his honor criticized all attorneys regarding fees; however, the matter is of greater concern at  this stage for intervenors, as they had the burden of proof on the matter of compliance with the revised plan. Mem. Opinion, at 74. In this setting, the appropriate remedy is the vacating of all orders, rulings and judgments entered after reassignment of this case to his honor. Compare Preston v. United States, 923 F. 2d . 731, 734-36 (9 th Cir. 1991) (vacating judgment and remanding for ~retrial by a different judge~). Robert Pressman 22 Locust Avenue Lexington, MA 02421 781-862-1955 Mass. 405900 Respectfully submitted, J n 4):Shn W. Walker, 1723 Broadway Little Rock, AR 501-374-3758 Ark. 64046  ,,..,_ ____ r.,::_--1'-I\u0026gt;-'\"\"-._.\u0026lt;..-;_ Rickey: icks Attar ey at Law 1100 orth University-, Suite 240 Little Rock; AR 72207 501-663-9900 P.A. 72206 10 This paragraph relies on the facts set forth in the motion, para. 13. 13 CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Memorandum has been forwarded to all counsel of record via United States mail postage prepaid on this \"\"]:'.2 day of November, 2002. 14 . I ~\\\\ i ~Ji i!i! i!1I{ _,~ .; :~ -. r -~,;,-~. .... : }, -.: :;.: t\\i [;~~[ j ~t}:i :/( ,.,::. :.\u0026gt;r:,~,t;.;itT'.~~:,c:::;;; :\u0026gt;\u0026gt;,\u0026gt;,\u0026lt;~-)-t:,,, ~-...... : ,. . . : : -: ;, . -~ .,.:..  --. ! : ,- : .  ~-.:~)f -4;_/ ., ;,::/-- n I g tJ  IN TBE UNITED STATE$ COURT OF APPEALS FOR THE EIGHTH CIRCUIT LITTLE ROCK. SCHOOL PIS'I'RIC'r APPELLEE vs. POLASKI . COUNTY SPECIAL SCSCiOL scaoot DISTRICT .NO, 1, et.. al. APPELLANTS) ) ) MRS . LORENE JOSHUA'  et. al. . ) ) INT\u0026amp;~VENORS) IN RE: LITTLE ROCK SCHOOL DISTRICT, PETITIONER PET TT ION FOR WRI'.I' OF M.A.NDAJ.\\1US The above-named petition~r, the Little Rock School Di.strict , ~ ~ . herein applies for a writ of mandamus pursuant to Section 1651 of Title 28, United States Code (28 O.S.C. 1651) and Rule 211a) of tbe Fed~ra~ Rules of Appelfate Proced~re, ~ir~~t~d to. the ' !  Honorable Henry Woods, Jud~e of the United States District Court for th~ Eastern District of Arkansas, Wes~ern Division. In support cf this application~ tetitioner st~tes~ I. STATEMENT OF FACTS l. In July of 1986, petitioner submitted its faculty assignment plan for the Little Rock School District: to the district. court. (Pe~itioner's Exhibit parts cf r.~SD Pl~n J -1- II . STAT\u0026amp;~ENT  OF ISSUES PRESENTED 13. The petitioner filed its mot~on for the district . court to recuse . i tself on .P-_pri_l 22, 198 7 . The district court denied _ the motion on April 30 1 1987. pe-ti tion is whether the q.istrict court erre9 in fail lng to gr2.nt LR.SD' s moti-on .for recusal. tf ' :#\\j TII. REAS-ONS FOR GRANTING !(_EL TEF SOOGE'l' u  u f . -, ! r:- !1 .' 14. . The district court, by enga-g.ing in ex rerte communications, by commenting to the public and the press regarding the propriety of LRSD 1 s faculty assignment plan , by attempting to conduct its own discovery and consider evidence outside the record, and by sending letters and issuing orders stating that petition~r has violaied previous orders without hearing any evidence, has established the appearance of -impartiality in violation of ''28 O.S.C. 455(al and the Canons of -; Judicial Eihics, Canons l, 2: and 3 (A){4l . WHEREFORE, petitioner respectfully prays that a writ of mandamus be .issue.cl -by this cclirt directed to the Hono:rable Henry Woods, Judge cf the United St~tes District Court for the Eastern . I District of Arkans~s, West~rn :Division, to recuse himself , frorn presiding over these proceedings and for such further relief as tnis court des~s just ana proper. -5- - --------- _sT~I'.EMENT OF THE CASE The Proceedinqs Below This Petition seeks to have The Honorable Henry Woods disqu~lified from presiding over this school desegregation case. LRSD filed a Motion for the district court to Recuse pursuant to 28 U.S.C. 45S(a), alleging that the district court had demonstrated the appearance of ~rejudice through his actions and extrajudicial comments in response to LRSD's faculty assignment plan. The district court denied LRSD's motion on April 30, 1987 . See Little Rock School District v. Pulaski Countv s-oecia1 School District, No. LR-C_:_82-866 , (E.D . . Ark. April 30, 1987) (Order Denying Recusal} . Statement of Facts This protracted and complex school desegregation case ,,. began in 1982 when th_e LRSD and the Joshua Intervenors filed this action against the Pulaski County Special . School District ( \"PCSSD\" l and the North Little Rock Schoel District (\"NLRSD''l, claiming that ithey had failed in their i affirmative duty to desegregate their schools. Afte-e a long and complicated trial, the district court held that the PCSSD and NLRSD had indeed fallen short of their respective respor-sibilities to desegregate their schools and ' ordered that all three school districts be cqnsolidated. Liti:le vii lt\"Q . {!'4\" $J -i:: . sn.U:,-.,s,  01.s ~~ t;::D 1~-;:   Dis ; Hie:+- C(JuRr NO AR.ivwSA.s IN THE UNITED STATES DISTRICT COURTJAMEs V 2 B 2002 EASTERN DISTRICT OF ARKANSAS By: V\\! MccoR1, WESTERN DIVISION i-fACK, CLf:Rk LITTLE ROCK SCHOOL DISTRICT RECEIVED V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL .  MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL DEC - 2 2002 OFFICEOF DESEGREGATION MONITORING DEFENDANTS INTERVENORS INTERVENORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR THE VACATING OF ORDERS AND RECUSAL The LRSD for its Response states: 1. Joshua's Motion should be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C.  455(a) and (b). 2. The LRSD's memorandum brief in support of this Response is hereby incorporated by reference. WHEREFORE, the LRSD prays that Joshua's Motion be denied; that the LRSD be awarded its costs and attorneys' fees expended herein; and that the LRSD be granted all other just and proper relief to which it may be entitled. F \\HOME\\FENOLEY\\LRSD 200 I \\umtary-rcsponse-mot-reclUc: wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FR1DA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501 - 11 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on November 26, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg.  200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F\\HOM.E\\FENDLEY\\LRSO 2001\\uniwy.response-mol-rccusc: wpd 3 - - - - - - - - - ---- - - - ----- -- ~#RG,(4,5D IN THE UNITED STATES DISTRICT COURT tsrR,cr~ EASTERN DISTRICT OF ARKANSAS Nov 2 6 \u0026amp;\\s WESTERN DIVISION JAME~ I, .. 2002 By .\\.. M\"r- ,, ,.., LITTLE ROCK SCHOOL DISTRICT -~ ).E~~IFF LJ;,;1::-c~ V. LR-C-82-866 RECEIVED PULASKI COUNTY SPECIAL SCHOOL OEC .. 2. 2002 . DISTRICT NO. 1, ET AL  DEFENDANTS Orf\\Ct Of MRS. LORENE JOSHUA, ET AL ltatll\\r',.~\\TlOM MOMllORl1l\u0026amp; JNTER VENO RS KATHERINE KNIGHT, ET AL JNTERVENORS MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR THE VACATING OF ORDERS AND RECUSAL Joshua's Motion should be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C.  455(a) and (b). Each of these grounds for denial will be discussed in tum below. A. It is too late for Joshua to seek recusal based on the Court's representation of the Honorable Herny Woods over a decade ago. The Eighth Circuit has consistently held that motions to disqualify pursuant to 28 U.S.C. I  455(a) and (b) must be filed in a timely m~er. Holloway v. United States, 960 F.2d 1348 (8th Cir.1992)( claims under 28 U.S.C.  455 must be made in a timely manner); Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407; 1414 (8th Cir.1983) (\"Although 455 does not include an explicit time limitation, we believe that a timeliness requirement is appropriate., ... \"}; United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994) (\"This court has held that claims under 455 'will not be considered unless timely made.' \") (quoting Holloway). Parties are required to apply for recusal \"at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim,\" Apple v. Jewish Hosp. \u0026amp; Medical - Ctr., 829 F.2d 326, 333 (2nd Cir.1987), for two reasons: ( 1) a prompt application affords the district judge an opportunity to assess its merits, and (2) a prompt application avoids the risk that a party is holding back a recusal motion as a fall-back position in the face of an adverse ruling. See In re International Business Machines Corp., 45 F.3d 641,643 (2nd Cir.1995); accord In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir.1995) (\"In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns.\"); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986) (\"Counsel, knowing the facts claimed to support a . 455(a) recusal for appearance of partiality may not lie in wait, raising the recusal issue only after learning the court's ruling on the merits.\"), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987). The latter concern is particularly relevant in a long-standing case such as this. In affirming Judge Woods' decision not to disqualify himself, Judge Richard Arnold wrote: At the outset, we note the irony that most of the major parties to this litigation have at some point sought the removal of the trial judge. 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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. * * * * -PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., * 4:82CV00866 u.fo1{k,~CQRT EASTERN DISTRICT ARKANSAS OCT O l 2002 JAME~~  l!:ly: ~ 2 - ,   . Defendants, * * RECEIVED MRS. LOREN JOSHUA, et al., * lntervenors, KATHERINE KNIGHT, et al., lntervenors, * * * * OCT - 3 2002 OFFICE OF DESEGREGATION MONITORING ORDER Attached is a copy of a letter from Mr. Walker dated October 1, 2002. presume it should be treated as a motion of some kind. Accordingly other counsel of record may respond within the time permitted by the Federal Rules of Civil Procedure. IT IS SO ORDERED. Dated this 1st day of October, 2002. THIS DOCUMENT ENTERED ON GOCKET SHt'.:ET !N COMPLIANCE ~vv i1r.~i RMuLi::: 58 AND'C'R~ gr. RCF ,.,, ,,.., ,--.,(  ' - - - - - - v. ___ - 0 -- - - - - 6 8 0 JOHN W. WALKER SHAWN CHILDS JOHN W. WALKER, P.A. ATTORNEY AT LAw 1 723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 3743758 FAX (501) 3744187 October 1, 2002 Honorable Judge William R. Wilson United States District Court 600 West Capitol, Suite 423 Little Rock, AR 72201 I Re: Little Rock School v. Pulaski County School Case No. 4:82CV00866 Dear Judge Wilson: OCT - 2 2002 OFACE OF DESEGREGATION MONITORING OF COUNSEL ROBERT McHENRY. P.A. DONNA J. McHENRY 8210 HENDERSON ROAD LITTLE ROCK. ARKANSAS 72210 PHONE: (501) 372-3425  FAX (501) 372-3428 EwuL: mchenryd@swbell.net On page 172 of your Order of September 13, 2002, you determine a compliance remedy with respect to the Joshua Intervenors, Section D. You also require the ODM to monitor LRSD's compliance with Section 2. 7.1. May I bring to your attention that the remedy being imposed is not preceded by any court order determining and defining the parameter of Joshua's monitoring. Those issues were not before the Court. The Court now determines that Joshua must monitor and must immediately bring to the LRSD 's attention all problems that are detected as the court has determined those problems to be. In doing so, the Court seems to impose a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring. I, therefore, would like to request that the Court define the nature of the monitoring that it expects ofJoshua, i.e. access to information by Little Rock, cost of production of such information, access to staff responsible for fulfilling the obligations (must this be done in writing with communication directed to LRSD counsel), and so forth. I believe that it would be appropriate for the Court to spell out the obligations which it now imposes upon Joshua and the legal basis therefor in view of the fact that the remedy defined was not sought by LRSD or any party. I also note that LRSD is not required to inform Joshua of anything set forth on pages 170 through 1 72 except to provide a compliance report on or before March 15, 2004. I must also object to Court's imposing monitoring requirements upon Joshua that were contemplated to be the responsibility of the ODM. The Court's comments indicate that it does not forsee or require a continued responsibility for monitoring of the intensity which the Court of Appeals for the 8th Circuit required. In this respect, we note that the Court created the ODM and expected the ODM to carefully monitor on a daily basis, full-time, the activities of the Little Rock Page 2- Letter to Judge Wilson October 1, 2002 and other school districts. By placing the responsibility that you appear to place on Joshua, unless clarification otherwise provides, the Court is shifting the required monitoring from the ODM to Joshua. We do not believe that to be fair or reasonable. Before your final order is entered, and becomes appealable, I respectfully request a hearing on this matter so that an appropriate record on the issues of the role of ODM monitoring and Joshua monitoring may be fully developed. JWW:js cc: All Counsel of Record Ms. Ann Marshall IN THE UN1TED STATES DISTRJCT COURT EASTERN DISTRJCT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRJCT V. NO.4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERJNE KNIGHT, ET AL RECEIVED OCT - 8 .too2 OFFICE OF DESEGREGATION MONITORING PLAINTIFF'S RESPONSE TO JOSHUA INTERVENORS OCTOBER 1, 2002 LETTER PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS For its response to the Joshua Intervenors' (\"Joshua\") October 1, 2002 letter, Plaintiff Little Rock School District (\"LRSD\") states: 1. For more than decade, Joshua has reported to the Eighth Circuit Court of Appeals and to the District Court that it was engaged in the process of monitoring LRSD's compliance with LRSD's various desegregation obligations. At one oral argument, counsel for Joshua introduced a number of Joshua monitors to the panel of the Court of Appeals. 2. The 1998 Revised Desegregation and Education Plan formalized a process for resolving any desegregation compliance problems which were discovered during the course of Joshua's monitoring. The obvious purpose of that process, which is found beginning at  8.2 of the Revised Plan, was to allow the quick resolution of any compliance issues for the benefit of both the - Joshua class members and the LRSD. 3. There is nothing on page 172 of the Court's September 13, 2002 Order which imposes upon the Joshua Intervenors any obligations which are not contained in the Revised Desegregation and Education Plan or inherent in the class representatives' and class counsel's obligations to the class members. 4. The Court's September 13, 2002 Order followed weeks of litigation about issues which Joshua did not raise with the LRSD during the term of the Revised Plan. By requiring that Joshua and LRSD follow the \"process for raising compliance issues\" set forth in 8.2, et. film. of the Revised Plan, the Court is simply requiring the parties to abide by the terms of their own agreement. 5. TheLRSD can find in the Court's Order no basis for Joshua's argument that the Court has somehow imposed \"a greater burden upon Joshua than it has imposed upon the Office of Desegregation Monitoring.\" The LRSD does not read the Court's Order as \"imposing\" any burden upon either Joshua or the ODM which did not exist for years prior to the Court's Order. 6. The Court should decline Joshua's request \"for the Court to spell out the obligations which it now imposes upon Joshua.\" Nothing is required of Joshua that Joshua should not have been doing all along. The Court has simply let the parties know that in addition to 2.7.1 of the Revised Plan, their agreement with respect to the resolution of compliance issues remains viable. The Court's Order continues a sensible and efficient system for resolving compliance issues and puts Joshua on notice that objections raised for the first time on April 15, 2004 which were not raised pursuant to the compliance process could be subject to an argument that those issues have been waived. 7. The Court should require that any future requests for relief submitted by Joshua should be placed in the form of a Motion and filed pursuant to the Federal Rules of Civil Procedure and the local rules of this Court. WHEREFORE, for the reasons set forth above, Joshua's letter/motion of October 1, 2002 should be denied. Respectfully submitted, LITTLE ROCK SCHOOL DISTRJCT FRJDA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002. Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 P. 0 . Box 17388 Little Rock, AR 72222 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL RECEIVED OCT - 8 2002 OFFICEOF DESEGREGATIO.MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR RECONSIDERATION AND MOTION FOR NEW TRIAL Plaintiff Little Rock School District (hereinafter \"LRSD\") for its Response to Joshua Intervenor's (hereinafter \"Joshua\") Motion for Reconsideration and Motion for New Trial states: The LRSD will respond to each numbered paragraph of Joshua 's Motion for Reconsideration in tum. 1. The Court's use of the term \"supervision\" on page 2 its September 13, 2002, Memorandum Opinion (hereinafter \"Opinion\") was appropriate. It is common for a school district implementing a court ordered desegregation decree to be referred to as being under court \"supervision.\" See Freeman v. Pitts, 503 U.S . 467, 471 (1992)(\"The DCSS has been subject to the supervision and jurisdiction of the United States District Court for the Northern District of Georgia since 1969 . .. \" (emphasis supplied)). The Office of Desegregation Monitoring (\"ODM\") acted under the authority of the Court to supervise the LRSD. 2. Evidence related to Joshua's failure to raise compliance issues during the term of the LRSD's Revised Desegregation and Education Plan (hereinafter \"Revised Plan\") was relevant to the Board's good faith, to assist the Court in interpreting the Revised Plan, and to the Board 's estoppel defense. 3. The ODM works for the Court, and it is entirely appropriate for the Court to define its role and for the Court to take into account the LRSD's position with regard to ex parte contact between the Court and ODM. 4. Joshua cannot blame their failure to come forward with evidence on the Court's focus on \"brevity and substance.\" In any event, Joshua agreed to narrow the issues and the time limits imposed by the Court and cannot now be heard to complain. See Tr. Dec. 11 , 2001 , pp. 36-37. 5. The LRSD denies that footnote 15 on page 9 gives the impression that Joshua counsel have been involved in this case since 1982. The record is clear that Joshua intervened ' only after the LRSD prevailed in this case. While the 1989 Settlement Agreement did also resolve the Clark and Cooper cases, the Court is correct that this is a 20 year-old case. 6. The Court correctly noted that the claims for relief and remedies sought differ in the present case from Clark. Clark was simply a continuation of the Cooper case filed in 1956 asking that \"an injunction be issued against continued segregation of the races in the Little Rock public school system.\" Aaron v. Cooper, 243 F.2d 361 , 362 (8th Cir. 1957). The LRSD filed this case in 1982 seeking consolidation of the three Pulaski County school districts based on interdistrict constitutional violations by the other districts and the State of Arkansas. See LRSD v. PCSSD, 584 F.Supp. 328 (E.D. Ark. 1984). The LRSD denies that either the late Honorable Henry Woods or Special Master Aubrey McCutcheon found that the LRSD continued to unlawfully discriminate against African-American students. 7. The LRSD denies that the information in footnote 47 on pages 26 and 27 is inaccurate. It is entirely appropriate for the Court to evaluate and comment on ODM's productivity. Nothing in the Court's opinion suggests that the Court has violated or intends to violate the Eighth Circuit's mandate. 8. The LRSD denies that the ODM has been in an \"advisory position to the LRSD\" since December 27, 1996. The ODM returned to its monitoring role at the conclusion of the 2 Revised Plan's transition period. See Revised Plan,  10. Nothing in the Court's opinion suggests that counsel for Joshua was to take over the ODM's monitoring responsibilities. Counsel for Joshua was obligated to monitor the LRSD based their ethical duty to their clients and their implied contractual duty to the LRSD. 9. The LRSD denies that the Court's discussion of Joshua's 1996 request for attorneys' fees indicates bias or hostility toward counsel for Joshua, implies collusion between the lawyers, suggests Judge Wright did not know the tenns of the settlement, complains unfairly that a matter on appeal should not be resolved by the parties, suggests that Joshua's counsel agreed to assume the role of ODM, or holds counsel for Joshua to public contempt for being paid. As to counsel for Joshua's attempt to justify the monito.ring fees paid by the LRSD, the LRSD denies that counsel for Joshua attended \"hundreds of meetings\" with school District officials, that counsel for Joshua was ever \"threatened with arrest,\" and that the LRSD revised its policies because of counsels' \"persistence and vigor.\" The LRSD also denies the implication that - counsel for Joshua was responsible for the additional funding the three Pulaski County districts receive from the State by virtue of litigation related to the 1989 Settlement Agreement. While the discussion of professional fees is not directly related to the issues before the Court, the Court was free to include this discussion in its opinion. 10. The LRSD denies that the testimony ofDrs. Walberg and Armor was inapposite to the issues before this Court. Their testimony provides the context in which the LRSD and Joshua agreed to the Revised Plan and the basis on which the Court approved the Revised Plan, both of which are relevant to interpreting Revised Plan 2.7. 11 . The LRSD denies that there is no evidentiary basis for the Court's finding that ODM and Joshua did not object to the LRSD's Interim Compliance Report. Dr. Bonnie Lesley testified to this fact (Tr. Nov. 19, 2001 , p. 287), and it is stated in the introduction to the LRSD's Final Compliance Report (CX 870, p. iv.). 3 12. The LRSD denies that the Court was required to share with the parties any criticisms it had of ODM's June 14, 2000, discipline report. The LRSD's Interim Compliance Report was admitted into evidence as CX 869. The LRSD denies that the issue of discipline was not ripe for objection after the LRSD filed its Interim Compliance Report. Dr. Linda Watson testified that ODM and Joshua were regularly provided copies of the District's Disciplinary Management Reports. See Tr. Nov. 19, 2001, p. 83. 13. The Court is correct that Joshua failed to present any evidence that the LRSD was not in substantial compliance with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement and school construction and closing. Joshua did not present any evidence on these issues:precisely because it abandoned those arguments. See Tr. Dec. 11, 2001 , pp. 36-37. Joshua cannot now be heard to complain that the Court did not allow Joshua to present evidence on those issues. 14. The Court found that Revised Plan  8.2 did not expressly require Joshua to raise compliance issues pursuant to the process set forth therein. See Memorandum Opinion, p. 89. Even so, evidence of Joshua's failure to raise compliance issues was relevant to the Board's good faith, to assist the Court in interpreting the Revised Plan, and to the Board's estoppel defense. The LRSD denies that there was \"much evidence that Joshua regularly brought matters of compliance to the attention of the school district administrators.\" 15. Footnote 2 of the Revised Plan is unambiguous, and the Court correctly interpreted the plain language of the footnote. The LRSD denies that Joshua introduced evidence \"that certain goals were to have been fully met while others would be ongoing.\" 16. The LRSD denies that the Court must presume \"that there is a correlation between student achievement and money expenditures by school districts.\" The LRSD also denies that only conclusion to be drawn from any continuing racial disparity in achievement is that the beneficiaries of desegregation funding have been white students. Joshua's argument ignores the fact that the racial disparity in achievement exists when students arrive for their first day of 4 school. As Drs. Wal berg and Armor explained, it would be impossible for the LRSD to eliminate the racial disparity in achievement given the current racial disparity in socioeconomic status. 17. The LRSD denies that the Court improperly referred to the Green factors. The Revised Plan constituted an agreement voluntarily entered into by the LRSD. The LRSD entered into that agreement because it believed implementation of the Revised Plan was in the best interest of Afucan-American students, and indeed, all students in the District. 18. The Court is correct that in this case the LRSD has never been adjudicated a \"constitutional violator.\" The LRSD denies that it was held in contempt during the implementation of the 1990 settlement plan. 19. The Court correctly interpreted Revised Plan  2. 7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. Joshua sought to use the racial disparity in achievement to establish the LRSD's noncompliance with Revised Plan 2.7, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in achievement and the LRSD's alleged noncompliance. 20. The Court acknowledged that the Revised Plan did not expressly require Joshua to raise an issue pursuant to Revised Plan  8 before it could object to the LRSD's final report. See Memorandum Opinion, p. 89. 21. The LRSD will respond to each subparagraph of paragraph 21 in tum: (a) The Court drew a reasonable inference from the fact that Joshua failed to further pursue these issues and from Baker Kurrus's testimony that he asked Dr. Carnine to work with Joshua to resolve these issues. See Tr. July 24, 2002, p. 751. (b) Dr. Lacey so testified (Tr. July 24, 2002, p. 777), and no \"record of past actions\" is required for the Court to credit the testimony of a witness. ( c) Joshua points to nothing in the \"record\" which would indicate that the Court's characterization is erroneous. 5 (d) In fact, Junious Babbs testified that ODM and Joshua were provided copies of the Compliance Plan and Compliance Handbook.Court. See Tr. July 5, 2001, pp. 73, 77 and 78. Moreover, ODM's August 11 , 1999 report establishes that ODM received both. See pp. 39 and 40. Counsel's suggestion on cross-examination that Joshua did not receive them is not evidence. See Eight Circuit Model Jury Instructions (Civil) 1.02 (2001). Thus, the only evidence before the Court was testimony that ODM and Joshua did receive the Compliance Plan and Compliance Handbook. (e) The record in this case includes motions by the LRSD after Joshua filed its objections to stop counsel for Joshua from entering the offices of LRSD staff members unexpectedly and from using the Freedom of Information Act (\"FOIA\") to conduct discovery. Joshua's opposition to these motions provides ample support in the record for the Court's finding. (f) The Revised Plan did not prohibit the LRSD from holding meetings without Joshua being present. Thus, there was no \"failure\" for the Court to excuse. (g) The Court correctly found that Revised Plan  2.5 did not require the LRSD to eliminate or reduce the racial disparity in discipline. (h) The criticisms offered by the Court were readily apparent from the report itself, and Joshua cannot blame the Court for failing to put it on notice of these shortcomings. (i) The suspension index is a well-recognized statistic and has been explained in numerous desegregation cases. See, li, Hoots v. Pennsylvania, 118 F.Supp.2d 577, 608 n.25 (W.D. Pa. 2000). The Court was free to accept the LRSD's calculations which were admitted into evidence without objection. See CX 743 . (j) The Court correctly interpreted Revised Plan  2.5 as not requiring the LRSD to eliminate or reduce the racial disparity in discipline. Joshua sought to use the racial disparity in discipline to establish the LRSD's noncompliance with Revised Plan  6 2.5, and the Court correctly placed the burden of proof on Joshua to establish a causal connection between the current racial disparity in discipline and the LRSD's alleged noncompliance. (k) The Court correctly noted that not a single student testified that he or she had been discriminated against in the imposition of discipline. The LRSD fails to see how the Court's admonition not to present cumulative evidence prevented Joshua from calling any students to testify during the hearings on Revised Plan  2.5 . (I) The Court's description of Dr. Watson's testimony is accurate given the ' context in which the statement was made. (m) The fact that African-American teachers suspended African-American students more than white teachers is not \"a finding ofracial mistreatment by AfricanAmerican teachers toward African-American students.\" (n) The Court's statement that \"students of all races tend to gravitate toward sports that they have grown up playing and that they enjoy'' does not condone racial disparities in activities. ( o) The only inference to be drawn from testimony of Ray Gillespie is that the LRSD responded appropriately when confronted with allegations that white coaches mistreated African-American student athletes. (p) The Court did not accept a \"means\" test for participation in activities. The LRSD presented evidence of the steps it took to ensure that no student was denied participation in an activity due to a financial barrier, and Joshua came forward with no evidence that a single student was denied participation in an activity because of a financial barrier. ( q) The Revised Plan did not require the LRSD to eliminate or reduce the racial disparity in the percentage of students taking AP courses. The LRSD has worked hard to increase the number of African-American students in AP courses, and it has done 7 so. The LRSD's success cannot be diminished by Joshua characterizing the LRSD's efforts as \"minuscule.\" (r) The Court gave due weight to the testimony of Jason Mercer and Ramona Horton. (s) The Court did not accept a \"means\" test for participation in the University Studies Program at Hall High School. It is true that Dr. Lacey did not identify the race of the student for whom a private donation was sought so the student could participate in the University Studies Program. See Tr. July 24, 2002, p. 802. However, it was reasonable for the Court to infer that the student was African-American for two reasons. First, when counsel for Joshua began this series of questions, he limited the question to AfricanAmerican students. See Tr. July 24, 2002, p. 801. Second, there was evidence that African-American students were more likely to be poor, and therefore, to be excluded by financial barriers to activities. See Tr. July 24, 2002, p. 602 and 624. (t) (u) The Court gave due weight to Ms. Watson's testimony. The Court correctly interpreted Revised Plan  2.7 as not requiring the LRSD to eliminate or reduce the racial disparity in achievement. (v) The Court may infer that counsel for Joshua read Revised Plan  2. 7 before agreeing to it, and therefore, knew what it required. (w) The Court is correct that Joshua did not raise the issue of the LRSD's March 19, 2001, agreement with the State of Arkansas in its Opposition to the LRSD's Motion for an Immediate Declaration of Unitary Status filed May 30, 2002. WHEREFORE, the LRSD prays that Joshua's Motion for Reconsideration; that Joshua's Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order be denied; that the LRSD be awarded its costs and attorneys' fees expended herein; and that the LRSD be awarded all other just and proper relief to which it may be entitled. 8 F:\\HOME\\FENDLEY\\l..RSD 200 1\\unitary-rcsponsc-mot-rcconsider.wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRJDA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 37 -\"1LM-+---- 9 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on October 7, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\\J-IOME\\FENDLEY\\LRSD 2001 \\uni1ary-rcsporuc-mot-rccoruidcr wpd 10 : - JOHN W. WALKER, P.A. A't'TORNEY AT I.Aw 1723 l3RoADWAY Lrrru: RoCK, .AluWlsAS 7.2206 TE.t.EPRONE (501) 374-3758 FAX (501) 374-4187 JOHNW. WALKER SHAWN CHILDS OFCOUNsEL ROBERT Mc~1.~ DONNAJ. M=t 8210 liENtll!RSON BaAn Ll1't1.P. Roel[, .AiKANSAS 72210 l'BONE: (601) 572-8426  FAX (501) 372,.8428 EMan.: mchen:ryd@nrbell.net Honorable William R.Wilson United States District Judge 600 W. Capitol Suite 149 Little Rock, Arkansas 72201 Re: LRSD v. PCSSD Dear Judge Wilson: Via Facsimile: 604-5149 October 9, 2002 Tius is a supplement to my letter motion of October 1,2002. I appreciate the Court treating it as a motion, although I did not so couch it, and I believe that the appropriate action taken by the Court in inviting the parties to react will be most useful. 1 believe that it is important for me to specify, however, what Joshua believes it would be appropriate for the Court to do with respect to clarifying the monitoring role of the Office of Desegregation Monitoring. I am therefore asking that the Court conduct a hearing: ( a) to identify the instructions received by the Office of Desegregation. Monitoring (later referred as the ODM) regarding monitoring and reporting in reference to the LRSD's Motion for Unitary Status; (b) to consider whether the instructions received by the ODM were consistentmth the earlier identification ofODM's role as setfonh by the Court of Appeals for the Eighth Circuit; and ( c) to identify with greater particularity ODM' s monitoring and reporting role regarding the three school districts, If the Court is inclined to have me fonnalize my October 1, 2002 letter and today's letter in motion form, I will be happy to do so. I am also writing to observe that the Joshua Intervenors filed a Motion for Reconsideration within the time allowed by law and that there has no response filed by either party within the rule time to our motion. Local Rule 7.2(b) requires that any party opposing our motion shall file such motion within eleven days. By my count, any opposing party should have filed its opposition not later th.an October 4, 2002. Today is obviously October 9, 2002. I am nor aware that the Court has a received a Motion to Extend the Time and I have not had a request from any counsel regarding an extension of such time. Page Two October 9, 2002 Accordmgly, we request that the Court role on the motion. JWW:lp cc: All Counsel of Record Ms. Ann Marshall Brown i _-t.ttorne-; at Law 17ZJ Broadwcry Ltrrle Roa:; _4.J-!car..sr::s 72206 Telephone (501) 374-3758 .Fzc (501) 37-~ '.' 187 F/4,X TR.-4.L\"'iSlY.!ISSION CO\"y'ER SEEET Da:i2: [ To: [ Fa..-c: l __ 3. c-..\u0026lt;-2 ...... r- d)-.:-.LJ_c_JP __ __,1 Re: ,. l Sender: [_= =g,;===luY-==========; YOU SHOu2D R.ECE.TVE [_ _ (including cover sheer)] P.:!..GE(S), fl'ICLUDING l'F..JS CO VER. S,--:.r;;''f:T. IF YOU DO NOT RECEIVE ALL THE PAGES, P LE...:JSE CJ.LL \"\u0026lt;(501) 374-3758\u0026gt;\" The information coma.ineciin !his ~;mile meo:sage is atto:r-ey privilege:i and conficientfaJ. information intended only for the use of .b.e in.diviriual or en.rit-; nmned. above. If tile ruder of this m~sage is il.Ot tb.e intended recipient, or me ~ployee or agen, res-ponsibie to de.!iver it ro 1:le intended recipient, you sre b.ereoy .iotiiied ilint any cfuse:nination, di.'\"ll'founon or cop;1ing of cbis COIIlllluuication is stric:tiy prohiliii:ed. If you bave received. ihis commi'tni.c:icon in error, ple!:l!e immediate notify u.s by wlephoiie, md rerura the onginal messagi: .a J.l.:'J at the above address via .lie U.S. Postal s~:--lic:. Tilanic you. R CEIVED EAST~Rs~l~~e~~s s - CT 12 2002 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS OCT 1 1 2002 AO 72A (Rev.8/82) OFFICE OF LITTLE ROCK DIVISION JAMES W. DES REGATION MONITORING By: __~ ~~~.,..,J... ..... LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS On September 24, 2002, Joshua lntervenors (\"Joshua\") filed: (a) a Substituted Motion for Reconsideration (docket no. 3678), 1 which asks me to revisit many aspects of the September 13, 2002 Memorandum Opinion (docket no. 3675) (\"Memorandum Opinion\") declaring the Little Rock School District (\"LRSD\") to be unitary with regard to all aspects ofits operations under the Revised Plan (CX 871 ), except for 2.7.1; and (b) a Motion for New Trial or in the Alternative Motion for Relief from Judgment or Order ( docket no. 3677). On October 7, 2002, LRSD filed a Response to Joshua Intervenors ' Substituted Motion for Reconsideration and Motion for New 1On September 23, 2002, Joshua filed their first Motion for Reconsideration (docket no. 3676), which contained numerous errors. The next day, September 24, 2002, Joshua filed a second Motion for Reconsideration, which corrected most of those errors. I will consider this second motion as a Substituted Motion for Reconsideration, although it was not so designated. As a matter of fact, a motion for reconsideration is not recognized in the Federal Rules of Civil Procedure. They are, however, commonly filed and ruled upon in this jurisdiction--and I will hew to this custom. 3 6 8 4 AO 72A (Rev.8/82) Trial (docket no. 3682).2 After an initial review of Joshua's Substituted Motion for Reconsideration and Motion for New Trial, I considered summarily denying both motions on the ground that each of the arguments in support of reconsideration or a new trial is without any apparent merit. I believe that my 17 4-page Memorandum Opinion fully and accurately sets forth the relevant history of this case and that my detailed Findings of Fact and Conclusions of Law are amply supported by the record and controlling legal authority. In short, I have given this case my best shot, and, if counsel for Joshua believe I have erred, they should ~ppeal my decision to the Court of Appeals for the Eighth Circuit. Thus, on the merits, Joshua's arguments raise nothing that warrants comment beyond my stating I find they are without any factual support or legal foundation. However, to the extent that a number of Joshua's arguments tend to torque the Memorandum Opinion out of shape, and are supported only by speculation and personal innuendo, I think it best to set the record straight. First, Joshua suggests that I improperly \"faulted\" Joshua for failing to present evidence 2Under Rule 7 .2(b) of the Local Rules, LRSD's Response to Joshua's Substituted Motion for Reconsideration was due eleven days from September 24, 2002, and its Response to Joshua's Motion for a New Trial was due eleven days from September 23, 2002. Because Joshua's Substituted Motion for Reconsideration and Motion for New Trial were served on counsel for LRSD pursuant to Fed. R. Civ. P. 5(b)(2)(B) (mail) and (D) (electronic means), an additional three days must be added to LRSD's eleven days. See Fed. R. Civ. P. 6(e). Thus, LRSD had fourteen days to respond to those motions, making its Response to Joshua's Motion for New Trial due on or before October 7 and its Response to Joshua's Substituted Motion for Reconsideration due on or before October 8. As indicated previously, LRSD filed its Response to both those Motions on October 7. In a letter dated October 9, 2002, Joshua's counsel asked me to strike LRSD's Response to those two motions because it was not filed within eleven days. Because Joshua's counsel overlooked Fed. R. Civ. P. S(b) and 6( e ), they miscalculated the deadline for the filing of LRSD 's Response to be October 4. Therefore, their request to strike that Response is denied. -2- A072A (Rev.8/82) on the March 19, 2001 Agreement between LRSD and the Arkansas Department of Education (CX 548). Substituted Motion for Reconsideration at 2. To the contrary, the Findings of Fact explicitly state that: The March 19, 2001 Agreement between the ADE and LRSD is unrelated to the question of whether LRSD has substantially complied with its obligations under the Revised Plan. It is important, too, that Joshua did not raise that issue as part ofits challenge to LRSD's request for an immediate declaration ofunitary status. Memorandum Opinion at 149, ,1 17 ( emphasis in original). Thus, although Joshua introduced CX 548 into evidence,3 I expressly did not consider it in deciding the unrelated question of whether LRSD had substantially complied with its obligatio.ris under the Revised Plan. Nowhere in my Memorandum Opinion do I \"fault\" Joshua for failing to produce evidence regarding the March 19, 200 l Agreement between LRSD and ADE--a subject that clearly was not before me in the hearings on unitary status. Second, Joshua contends that I should not have addressed \"the involvement of the ODM with respect to issues which were litigated before Judge Wright and Judge Wilson . . . [because] the competence of the ODM, the quality of the ODM reports, [and] the budget of the ODM .. . were not before the Court in evidentiary form .'\"' Substituted Motion for Reconsideration at 2, 6-7, and 10. The ODM, an employee of the district court, has monitored LRSD's compliance 3It strikes me as a little strange that Joshua introduced the March 19, 2001 Agreement into evidence during the hearing on unitary status and now argues, in their Substituted Motion for Reconsideration, that the document is irrelevant to the question of whether LRSD substantially complied with its obligations under the Revised Plan. I agree that the document is irrelevant to the issue of substantial compliance, but this begs the question of why Joshua chose to introduce the document into evidence in the first place. I remain puzzled. 4For the record, my Memorandum Opinion does not consider \"the competence of the ODM.\" -3- A072A (Rev.8/82) with its obligations under the 1990 Settlement Agreement, the 1992 Desegregation Plan, and the Revised Plan. Because the ODM works for the court, all of its budgets, as well as all of the reports it has prepared over the years, have been filed and are part of the record in this case. Historically, all of the parties and the court have used ODM reports, to the extent they were relevant, during the many hearings that have taken place since 1991. After being assigned this case in January of 2002, I carefully reviewed the entire record. In doing so, I examined the ODM 's annual budgets from 1990 to date. I was troubled by the large increases in the OD M's budget over that period of time. I was also troubled by the large sums of money that I discovered had been paid to the attorneys for both Joshua and the three school di stricts.5 While attorneys are unquestionably necessary in school desegregation cases, it is the school children who ultimately are disadvantaged by unnecessary or exorbitantly high litigation costs. Thus, I believe that it was entirely appropriate for me to express my views on the ODM's rapidly escalating budgets,6 which are part of the record in this case, and the total amount of money that has been paid to all of the attorneys in this case during the last ten to fifteen years. As footnote 58 makes clear, my concern is with the enormous amount of money that has been paid to the entire professional group--the ODM, the attorneys for LRSD, PCS SD, NLRSD, and Joshua. As I thought my admonition made clear on page 44 of the Memorandum Opinion, I believe the issue of the money paid to the professional group is important because \"I understand the meaning of being careful with a dollar, and I expect the professional group to keep that 51n most long-running school desegregation cases that have been decided in the last ten years, courts have expressed dismay over the high cost of school litigation. I now know why. 6See Memorandum Opinion at 26-27. -4- A072A (Rev.8/82_) _ important point fixed in their minds from here on out.\" Why Joshua's counsel seriously contend that I should not have addressed a subject of such obvious importance is beyond me. In the same vein, Joshua's counsel argue that I should not have commented on the quality of the ODM's June 14, 2000 Report of Disciplinary Sanctions in LRSD (docket no. 3366). Joshua's counsel used that Report extensively in his examination of various LRSD employees who testified during the hearings on unitary status. Joshua's decision to use that Report, one of the Court 's own documents, in his examination of witnesses on the issue of student discipline, required me to read and carefully analyze that do~ument. In doing so, I discovered patent deficiencies which rendered the Report of little use to the court or the parties in trying to determine the cause for African-American students being over-represented in disciplinary proceedings. Thus, in my discussion of the history of this litigation (Memorandum Opinion at 47-50), I was obliged to point out the flaws in the ODM's Report of Disciplinary Sanctions. I note that Joshua does not deny those flaws--they simply object to my noting them. In my Findings of Fact on the issue of student discipline, I again commented on the OD M's Report of Disciplinary Sanctions, which was prepared for the express purpose of being used by the court in monitoring and evaluating LRSD's compliance with the Revised Plan. In light of that fact, I believe I would have been remiss ifI had not closely scrutinfaed the ODM's Report in deciding whether LRSD had substantially complied with those sections of the Revised Plan dealing with student discipline. Otherwise, what is the role of the Judge? Finally, and perhaps most importantly on this point, none of my Findings of Fact on the issue of whether LRSD substantially complied with its obligations regarding student discipline were based on anything contained in the OD M's Report of Disciplinary Sanctions. Rather, my -5- AO 72A (Rev.8/82 findings simply pointed out that, because the Report failed to develop a proper statistical model for evaluating the data on student discipline, its conclusions were based on pure speculation-making the Report of no use to the court or the parties in evaluating the cause for AfricanAmerican students in LRSD receiving a disproportionate number of suspensions. See Memorandum Opinion at 105-07, ,i,i 24-26. Third, Joshua's counsel take general exception to my discussion of the attorneys' fees that have been paid in this case during the last twenty years and particular exception to my allegedly erroneous finding \"that the Joshua counsel, including the Legal Defense Fund counsel, were paid more than $3,750,000 for their work between 1987 and the present time.\" Substituted Motion for Reconsideration at 3. The amount that Joshua's counsel have been paid, to date, in attorneys ' fees is a matter of public record. As pointed out in footnote 58 of my Memorandum Opinion, these attorneys' fees are as follows: $3,150,000 paid to Joshua's counsel under the 1990 Settlement Agreement;7 $700,000 paid by LRSD to Joshua's counsel for monitoring work performed after December 12, 1990, and before July 1, 1998 (see Exhibit 7 to docket no. 3581 ); and $124,861 paid by LRSD to Joshua's counsel for monitoring work performed under the Revised Plan between July 1, 1998, and January 2001 (see Exhibit 8 to docket no. 3581 ). Thus, based entirely on the evidence in the record, without any need for me to speculate or make assumptions, Joshua's counsel have been paid, to date, $3,974,861 in attorneys' fees--this is more than $3,750,000. In footnote 58 of my Memorandum Opinion, I hazard what I admit to be a \"guess\" that, since 1990, the attorneys ' fees that LRSD, PCS SD, and NLRSD have paid to their own attorneys 7LRSD v. PCSSD, 921 F.2d 1371 , 1390 (8th Cir. 1990). -6- AO 72A - ~(Rev.8/82) \"totals at least $4,000,000.\" Joshua's counsel clearly lack standing to complain about my \"guess\" regarding the aggregate amount of attorneys ' fees paid to counsel for the three school districts--an estimate that LRSD has not challenged. In light of these undisputed facts, I seriously question how Joshua's counsel can make the statement that \"counsel Walker does not accept the court's conclusion that he has directly benefitted from the perpetuation of this case.\" Substituted Motion for Reconsideration at 9. With all due respect to Mr. Walker, I am having a hard time escaping the conclusion that he has been \"directly benefitted\" by receiving millions of dollars in attorneys' fees in this case. Fourth, Joshua's counsel, without citing any supporting facts, accuse me of \"a predisposition which could only have come from previous attitudes regarding the role oflawyers in this long-standing case\";8 \"negative attitudes toward lawyers who are involved with and associated with this case\";9 and \"a bias or hostility toward Joshua's counsel.\"10 Although this should go without saying, I want to remind Joshua's counsel that, while I ruled against them on five of the six arguments they advanced, this does not mean that I harbor any bias against or hostility toward them. 11 For the record, I have no \"predispositions,\" \"negative attitudes,\" or \"bias or hostility\" toward Joshua's counsel. I did indeed express dismay over the attorneys' fees that have been paid to all of the 8Motion for Reconsideration at 2. 9Motion for Reconsideration at 3. 10Motion for Reconsideration at 7. 11\"The Judge must not like me\" is a refrain usually sung by lawyers who have just been called to the bar--when a lawsuit doesn't tum out exactly as they had wanted. Experienced lawyers generally resist the temptation to raise this claim. -7- A072A (Rev.8/82) attorneys in this case--! believe that was a subject that called for comment during my discussion of the long history of this case. Likewise, the concerns I expressed about LRSD's decision to pay Joshua's counsel $700,000 for performing monitoring work for which Judge Wright ruled Joshua's counsel had already been paid ( docket no. 2821) and the $48,333.33 per year that LRSD agreed to pay Joshua's counsel for performing monitoring work under the Revised Plan are directly supported by detailed citations to the record 12--not speculation or conjecture--and also deserved to be mentioned in my review of the history of this case. As I stated in the Memorandum Opinion, counsel for both LRSD an,d Joshua should have done a better job of documenting the reasons for the payment of these attorneys' fees and the precise role of Joshua's counsel in receiving monthly payments from LRSD to monitor its compliance with the Revised Plan. However, in reaching that conclusion, I was guided entirely by the plain facts contained in the record and not by any \"preconceived ideas\" or a \"bias or hostility toward Joshua's counsel.\" Fifth, Joshua argues that: (a) because I discuss the fact that the OD M's staff and budget have more than doubled since its creation, I am implicitly criticizing \"Judge Wright's actions and the Court of Appeals for requiring the creation of the office in the first place\"; 13 (b) I \"may be I signaling that [I] want to end the role of the ODM as that role was established and created by the Eighth Circuit\"; 14 and ( c) I may be trying to infer that \"Joshua take over the roie of ODM with respect to monitoring at a rate of approximately $49,000 per year.\" 15 No one could fairly read the 12See Memorandum Opinion at 33-35 and 38-44. 13Motion for Reconsideration at 6. 14Motion for Reconsideration at 7. 15Motion for Reconsideration at 7. -8- A072A (Rev.8/82) Memorandum Opinion as stating anything within shouting distance of these three farfetched notions. As I repeatedly noted in my Memorandum Opinion, Judge Wright did an outstandingjob of presiding over this case for eleven long years, during which time she faithfully and skillfully decided well over a thousand motions. Nowhere do I implicitly or explicitly direct any criticism toward her. 16 Likewise, my Memorandum Opinion makes it clear that I believe it was a good idea for the Eighth Circuit to create the ODM so that the district court and the Eighth Circuit could ensure \\. that each of the three school districts complied with their many desegregation obligations. Obviously, it is important for the ODM to continue its monitoring work until each of the three school districts is declared to be unitary and released from further supervision by the court. At this point, my only concern is that the ODM operate as frugally and efficiently as possible in going forward with its monitoring of the now much less onerous single remaining compliance issue for LRSD and the desegregation obligations that remain in effect for NLRSD and PCS SD. Finally, Joshua's counsel are absolutely correct that, in my Memorandum Opinion, there \"surely cannot be an inference that Joshua was [to] take over the role of ODM with respect to monitoring at a rate of approximately $49,000 per year ... . \" There is no such \"inference\" or \"implication.\" Sixth, Joshua argues that they should be allowed to present additional evidence ofLRSD' s alleged noncompliance with other sections of the Revised Plan. Substituted Motion for Reconsideration at 10-11. In support of this argument, Joshua alleges that \"the court previously 161 do not understand how counsel can possibly discern (or divine) any such criticism in the Memorandum. -9- AO 72A (Rev.8/82) instructed Joshua not to present any of that evidence [on LRSD's alleged failure to substantially comply with its obligations regarding faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing].\" This is not true. It is an after-the-fact assertion. On May 9, 2002, I entered an Order (docket no. 3598) explaining in detail how I intended to proceed in conducting up to five days of hearings on the remaining issues Joshua had raised in their challenge to LRSD's request for unitary status. Four pages of that Order were devoted to discussing what transpired during the December l l., 2001 hearing before Judge Wright, which was held to discuss the remaining grounds for Joshua's challenge to LRSD's substantial compliance with the Revised Plan. Id. at 9-12. The May 9 Order pointed out that, during the December 11 hearing, Joshua's counsel attempted to raise numerous new grounds for challenging LRSD 's alleged noncompliance after they had rested their case on what they viewed as their three strongest grounds--lack of good faith, failure to comply with obligations related to AfricanAmerican achievement, and student discipline. Judge Wright ruled that Joshua could present evidence on three remaining grounds for noncompliance: advanced placement courses; guidance counseling; and extracurricular activities. In addition, she ruled Joshua could present additional evidence of LRSD's alleged lack of good faith, but only to the extent that evidence was related to advanced placement courses, guidance counseling, and extracurricular activities. Judge Wright also made it clear that, after she had heard the evidence on these three remaining areas of alleged noncompliance, she would decide the question of unitary status. Joshua's counsel responded: \"That 's fin e, Your Honor.\" (Docket no. 3597 at 36-37.) Consistent with Judge Wright's ruling during the December 11 , 2001 hearing, the May 9 -10- A072A (Rev.8/82) Order provided that I planned to conduct up to five days of additional hearings on unitary status, during which Joshua would be allowed to present evidence of LRSD's alleged noncompliance with its obligations related to advanced placement courses, guidance counseling, and extracurricular activities. In addition, I allowed Joshua to present noncumulative evidence related to: (a) LRSD's lack of good faith, but only to the extent that it was related to advanced placement courses, guidance counseling, and extracurricular activities; and (b) how LRSD 's alleged failure to comply with its obligations regarding advanced placement, guidance counseling, and extracurricular activities adversely affected the aca~emic achievement of African-American students (docket no. 3598 at 13-14). I hardly see how the May 9 Order could have been any clearer in setting forth the precise ground rules regarding Joshua's three remaining challenges to LRSD's substantial compliance with the Revised Plan. Joshua's counsel raised no objection to the May 9 Order, and, after completing three additional days of evidentiary hearings on July 22-24, 2002, Joshua's counsel rested their case challenging whether LRSD should be declared unitary. Under these circumstances, there is no basis for Joshua's counsel to argue that the court \"instructed\" them not to present evidence ofLRSD 's alleged noncompliance with numerous other provisions of the Revised Plan. Joshua's counsel agreed, flat footedly, to the ground rules for conducting the hearings on unitary status, including the six specific areas of the Revised Plan under which they challenged LRSD's substantial compliance. It is far too late for Joshua to argue that they should be allowed to engage in piecemeal litigation by raising additional grounds for attacking LRSD's substantial compliance with the Revised Plan. Again--one last time--the grounds delineated by Judge Wright and me, and agreed to by all counsel, were fully litigated. -11- AO 72A (Rev.8/82) I do not know how to put it any more plainly than that. IT IS THEREFORE ORDERED that Joshua's Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Joshua's Motion for a New Trial or in the Alternative Motion for Relief from Judgment or Order be and it is hereby DENIED. nf DATED this day // of October, 2002. -12- /)J v_J ~ . ~ L!l UNITED STATES DISTRICTJU~ THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH tULE 58 AND/OR 79(a) FRC ON 10 I 1 / o 2.. BY D ~VI , () AO 72A (Rev.8/82) ECEIVEf OCT 1 2 2002 OFRCE GfSEGREGATtnN ;\\\\'.: lilTGRING EAsrM~l~~gl!2b IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS OCT 1 1 2002 LITTLE ROCK DIVISION JAMES W. Mc By: A K LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. ORDER PLAINTIFF DEFENDANTS INTERVENORS INTER VEN ORS In a letter dated and delivered to me on October 1, 2002, counsel for Joshua requested that I modify or clarify: ( a) various aspects of the compliance remedy contained in the September 13, 2002 Memorandum Opinion (the \"Memorandum Opinion\") declaring LRSD to be partially unitary; and (b) the role of Joshua and the ODM in performing future monitoring work in this case. Later that day, I entered an Order ( docket no. 3680), stating that I intended to :treat the letter as \"a motion of some kind.\"1 In a letter dated October 9, 2002, counsel for Joshua wrote me a \"supplement\" to their October 1, 2002 letter. Attached to this Order is a copy of the October 9 letter. On October 7, 2002, LRSD filed its Response to Joshua's October 1, 2002 letter (docket no. 3681 ). Because I see no reason to await LRSD's Response to the matters raised in Joshua's 1A copy of the October 1 letter is attached to my Ord~r. A072A (Rev.8/82) October 9 letter, I will proceed to address the merits of the reliefrequested by Joshua's counsel in both of those letters. As a threshold matter, I want to clarify how I view these two letters. On September 24, 2002, Joshua filed a Substituted Motion for Reconsideration (docket no. 3678) requesting that I clarify or modify many aspects of the Memorandum Opinion. Because both of Joshua's letters are seeking reconsideration of still other aspects of the Memorandum Opinion, I will treat those letters as a \"Supplement\" to their Substituted Motion for Reconsideration and address in this Order only those arguments raised in that \"Supplement.\"2 In the future, I think it will be best if all counsel file motions--not letters--raising any issues that they believe require my attention. I should not be copied on general correspondence amongst counsel. First, Joshua's counsel request that I clarify the monitoring obligations the Memorandum Opinion imposed on them with regard to LRSD's compliance with 2.7.1 of the Revised Plan. I shall do so. In 1990, Joshua's counsel made the commitment to participate in a monitoring system to ensure that LRSD, NLRSD, and PCS SD complied with their desegregation obligations under the 1990 Settlement Agreement. See Memorandum Opinion at 34. Later, in approving that Settlement Agreement, the Eighth Circuit recognized that counsel for Joshua were \"the best  defenders and guardians of the interests of their own clients.\" LRSD v. PCSSD, 921 F.2d 1371, 1386 (8th Cir. 1990). Between 1990 and 1998, Joshua's counsel participated in monitoring 2In a companion Order that I am entering contemporaneously with this Order, I have addressed and rejected the arguments raised by Joshua in their Substituted Motion for Reconsideration. -2- A072A (Rev.8/82) LRSD's compliance with the 1990 Settlement Agreement and the 1992 Desegregation Plan.3 After Joshua and LRSD implemented the Revised Plan in 1998, Joshua's counsel entered into an agreement with LRSD to monitor its compliance with the Revised Plan, a task for which LRSD agreed to pay Joshua's counsel $48,333.33 per year.4 Thus, for the last twelve years, Joshua's counsel have been involved with monitoring LRSD's compliance with its desegregation obligations . . In Section VII.A., B., and C. of the Memorandum Opinion, I outlined the Compliance Remedy LRSD must implement in order to comply with its remaining obligations under  2. 7. l of the Revised Plan. Because I believe that Joshua's counsel have an ethical obligation and professional duty to monitor LRSD's compliance with its obligations under  2. 7. l , I provided a monitoring role for them in Section VII.D of the Memorandum Opinion. I intended for Joshua's counsel to continue to perform their monitoring role according to the same procedure they and LRSD have followed for many years in this case. One could read the October 1, 2002 letter as suggesting that Joshua's counsel only intend to continue to monitor LRSD's compliance with 2.7.1 of the Revised Plan if they are ordered to do so by me. I do not believe I can force Joshua's counsel to perform monitoring duties--something that I may have mistakenly assumed they wanted to continue to do. I will leave it up to Joshua's counsel to decide if they have an ethical duty and professional obligation to 3Judge Wright ruled Joshua's counsel were not entitled to receive attorney's fees for any monitoring work performed after the Eighth Circuit's approval of the 1990 Settlement Agreement (docket no. 2821). While that ruling was on appeal to the Eighth Circuit, LRSD voluntarily agreed to pay Joshua's counsel $700,000 forperformingthatmonitoringwork. See Memorandum Opinion at 33-35 and 38-44. 4See Memorandum Opinion at 42. -3- AO 72A (Rev.8/82) continue monitoring LRSD's compliance with its sole remaining obligation under the Revised Plan. I hope Joshua's counsel resolve that question in favor of continuing their long-standing commitment to monitoring LRSD's compliance with its desegregation obligations. However, since they complain about my expressly directing them to continue monitoring LRSD's compliance with  2. 7 .1 of the Revised Plan--something I never expected to hear--I believe I must now modify Section VII.D. of the Memorandum Opinion to read as follows: Joshua may monitor LRSD 's compliance with  2. 7 .1 and, if they choose to do so, they should bring to the attention of LRSD, on a timely basis, all problems that are detected in its compliance with its obligations under  2.7.1, as those obligations are spelled out in this Complianc'f: Remedy. Thereafter, Joshua and LRSD must use the \"process for raising corripliance issues\" set forth in  8.2, et seq., of the Revised Plan to attempt to resolve those compliance issues. If those efforts are unsuccessful, Joshua shall present the issues to me for resolution, as required by  8.2.5. Any such presentation must be timely. Regardless of whether Joshua's counsel continue to monitor LRSD's compliance with  2. 7 .1, the ODM staff most certainly will continue their close monitoring ofLRSD 's compliance with that section of the Revi_sed Plan. I have every confidence that the staff of the ODM will carefully monitor LRSD's implementation of the Compliance Remedy I have ordered under 2.7.1 of the Revised Plan. If Joshua's counsel decide to continue with their monitoring role, which is independent from the monitoring work performed by the ODM, the preceding paragraphs of this Order make it clear that I expect them to follow the same monitoring practices they have followed for years in this case. I expect counsel for Joshua and LRSD to cooperate and work together to ensure that things go smoothly with regard to monitoring LRSD's implementation of its obligations under  2. 7 .1. However, if actual disputes arise regarding monitoring, I will be available to resolve them. -4- A072A (Aev.8/82) Second, Joshua's counsel makes an unsupportable and speculative statement that certain unspecified\"comments\" in the Memorandum Opinion \"indicated that [I] do not foresee orrequire a continued responsibility for monitoring of the intensity which the Court of Appeals for the Eighth Circuit required.\" This assertion simply is not true. I will expect and require the ODM staff to work hard every day to ensure that all three school districts fully comply with all of their remaining desegregation obligations. Of course, for LRSD, these obligations are now far less onerous than they have been in the past. Likewise, NLRSD has already been declared unitary with regard to several ofits original desegregation obligations. In other words, while I will expect ' and require the ODM staff to diligently and fully discharge their obligation to monitor the three school districts, the reality is they now have far fewer obligations. Finally, in Joshua's counsel's October 9, 2002 letter, they request that I conduct a hearing to clarify the role of the ODM. I find there is no need for any requested clarification of the role of the ODM--much less for a hearing on that subject. I feature myself capable of directing the ODM staff in performing their ongoing duties as monitors. IfI waiver in this belief, I may, at that time, call on counsel for suggestions. Of course, if Joshua's counsel determines that the ODM staff is not adequately discharging its monitoring duties, I would expect them to immediately file an appropriate motion. In closing, let me repeat the comment I made in my companion Order addressing the merits of the arguments made by Joshua in their Substituted Motion for Reconsideration: \"I have given this case my best shot, and, if counsel for Joshua or LRSD believe that I have erred, they should appeal my decision to the Court of Appeals for the Eighth Circuit.\" No more paper should -5- A072A (Rev.8/82) be wasted in asking me to reconsider aspects of my September 13 Memorandum Opinion or to clarify roles or responsibilities associated with the Compliance Remedy. That's myrulin'. If any party perceives error, that party should get its best hold and go to the Eighth Circuit. IT IS THEREFORE ORDERED that Joshua's Supplement to their Substituted Motion for Reconsideration be and it is hereby DENIED. IT IS FURTHER ORDERED that Section VI.D. of the Memorandum Opinion is modified to read as set forth, supra, at 4. TM DATED this day / ( of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 7~ ON IO '\" l Q-Z... gy_j-\"\"'-=;~,,,__,_~- -6- JOHNW. WALKER SHAWN CHILDS Honorable William R.Wilson United States District Judge 600 W. Capitol Suite 149 Little Rock, Arkansas 72201 Re: LRSD v. PCSSD Dear Judge Wilson: JOHN W. WALKER, P.A. ATTORNEY AT LAw 1723 l3RaADWAY Lrrru: RoCK, .Aluw.SAS 7.2206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsimile: 604-SJ 49 October 9, 2002 0FCOtlNsEL ROBERT M~,'!..~ DONNAJ.M=r 8210 liENi\u0026gt;KRSON Ra.\\n Ll'rrl.P. Ro~ AIKANSAs 72210 PHONE: (501) 872-8426  FAX (501) 372-8428 EMAn.: mcliemyd@s1rbell.net Tiris is a supplement to my letter motion of October 1,2002. I appreciate the Court treating it as a motion, although I did not so couch it, and I believe that the appropriate action taken by the Court in inviting the parties to react will be most useful. I believe that it is important for me to specify, however, what Joshua believes it would be appropriate for the Court to do with respect to clarifying the monitoring role of the Office of Desegregation Monitoring. I am therefore asking that the Court conduct a hearing: (a) to identify the instructions received by the Office of Desegregation Monitoring (later referred as the ODM) regarding monitoring and reporting in reference to the LRSD's Motion for Unitary Status; (b) to consider whether the instructions received by the ODM were consistent with the earlier identification of ODM' s role as set forth by the Court of Appeals for the Eighth Circuit; and ( c) to identify with greater particularity ODM' s monitoring and reporting role regarding the three school districts, If the Court is inclined to have me formalize my October 1, 2002 letter and today's letter in motion fonn, I will be happy to do so. I am also writing to observe that the Joshua Intervenors filed a Motion for Reconsideration within the time allowed by law and that there has no response filed by either party within the rule time to our motion. Local Rule 7.2(b) requires that any party opposing our motion shall file such motion within eleven days. By my count, any opposing party should have filed its opposition not later than October 4, 2002. Today is obviously October 9, 2002. I am not aware that the Court has a received a Motion to Extend the Time and I have not had a request from any counsel regarding an extension of such time. Page Two October 9, 2002 Accordmgly, we request that the Court role on the motion. JWW:lp cc: All Counsel of Record Ms. Ann Marshall Brown .!!.trorne\"J at Law 17:Z3 Broadwcy Ltrrle Rod; A:rkar..s:::s 72206 Telephone (501) 374-3758 .F'zc (501) 37-! '.1187 Fil TR..4.J.~SlV1ISSION COv'JER SERET p A ...:!.. 0 ..c:-1 . Date: [ To: [ Fa..\"C: l _..... .,3.c;.....c..-7 .f.. .-.o ~L-..::cJV;___ ____,7 Re: ,. ' Sender: [_= =~===l)==========; YOU SHOu'LD RECElr'\"E [_ __ (including cover sheer)} PA.GE(S), INCLUDING l'EJS COVER. S,~'f.T IF YOU DO NOT RECEIVE ALL THE PAGES, PLEA.SE CALL \"\u0026lt;(50]) 374-3758\u0026gt;n T.he information comaineci. :in this fu:!:im:ile m~sage is attorney privilegea and couficientfal infomiation mrended only for tb.e use of 'die indivirlulll or en.tit\u0026lt;/ nllm.ed. above. Ii tile re:icier of mis mem1ge is il.Ot the intended reci:pienr, or me employee or agenr res-pons,\"bie to de!.iver re to the intended. recipient, you sre b.ereoy aoti:iied ilim any disse::nination. di.'1ri\"ouiion or copying of cllis commuuicarion is .rtricrly prohibited. If you b.ave received. this c.onmumic:ition in c!l:IOr. p1C3.!e immedi.\u0026amp;e notify us by telephone. md = cb.e ongmal message .a l.l.'l at tile above address via rb.e U.S. Post.l.l Sc:~iice. Ti:um.k you. RECEIVED OCT 1 6 2002 OFACE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NIRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. THE JOSHUA INTERVENORS' MOTION FOR RELIEF CONCERNING THE ODM BUDGET DEFENDANT INTER VEN ORS INTER VENO RS The Joshua Intervenors respectfully move for the entry of an order for the parties' participation in the establishment of the budget for the Office of Desegregation Monitoring, in accordance with the decision of the Court of Appeals for the Eighth Circuit in Little Rock School District v. Pulaski County Special School District No. 1, 971 F 2d. 160, 166 (8th Cir. 1992). This motion is based upon the following allegations and the accompanying memorandum. 1. It has come to the attention of the Joshua Intervenors that this court is in the process of reducing the ODM staff and budget. A member of the ODM staff affected by staff and budget reductions planned by the court has contacted counsel for these intervenors with regard to her legal rights. 2. In LRSD v. PCSSD, supra, the Court of Appeals for the Eighth Circuit articulated the 1 rights of the parties with regard to the establishment fo the ODM budget. To this point, it appears that the court plans to make reductions in the ODM budget and staff without affording the parties the opportunity for participation in the budget-setting process, identified by the Court of Appeals. 3. The Joshua Intervenors concern about this matted~ magnified by the virtual non-use of ODM in the process of determining whether the LRSD had attained unitary status. That is, the court's lengthy opinion is silent on the question of the court's requesting ODM to report on any particular aspect of LRSD' s compliance with the Revised Plan, evidencing that no such request was made. 4. Appeal of the court's merits decision is likely. Any contemplated change in ODM's staffing level should take account of the fact that the Court of Appeals will have the final word - (absent Supreme Court review) on the scope of the LRSD's remaining plan obligations. 5. Alternatively, ODM' s staffing and budget should not be such that it is unable, in the future, to monitor the three districts ' compliance with remaining plan obligations in the manner contemplated by the Court of Appeals. Wherefore, the Joshua Intervenors respeqtfully pray that the court: a. provide the parties access to documents exchanged between ODM and this court concerning ODM staffing and the ODM budget (in th past and in the future): and b. permit the parties to promptly review, analyze, question, and make recommendations concerning or objections regarding the ODM budget and elements thereof, prior to their implementation. Respectfully submitted, 2 /', /) / 1 I ,I I ,  Ro 22 Locust A venue Lexington, MA 02421 781-862-1955 Mass. 405900 ohn W. Walker ~ John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 AR 64046 . - . CERTIFICATE OF SERVICE 3 RECEIVED OCT 1 6 2002 OFACE OF OCT :  DESEGREGATION MONITORING JAM Es 'J1J fi,_ r- r , ~ IN THE UNITED STATES DISTRICT \u0026amp;'!JllT_  f. ~-A\u0026lt; EASTERN DISTRICT OF ARKANSAS -- WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT ~S. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANT INTER VENO RS INTER VENO RS THE JOSHUA INTERVENORS' MEMORANDUM CONCERNING THE ODM BUDGET The Joshua Intervenors respectfully submit this memorandum in support of their accompanying motion for relief concerning the ODM budget. It has come to the attention of the Joshua Intervenors that this court is apparently in the process of reducing the ODM staff and budget. In a 1992 decision, the Court of Appeals identified the roles of the court and the parties in the establishment of the ODM budget. See Little Rock School District v. Pulaski County Special School District No. 1, 971 F 2d. 160, 166 (8th Cir. 1992). The motion seeks to insure that the parties have the opportunity for participation identified by the appellate court. A viable ODM is important to these intervenors because in their counsel's view the ODM was not given by the court the role envisioned by the Court of Appeals in the process for  determining court that the LRSD had attained unitary status in most areas. Intervenors' counsel 1 want to guard against a like result in the future. . ,1/ J ff -4? . IC7Ju L / ) ~ ,,y~/4 Robert Pressman t- 22 Locust A venue Lexington, MA 02421 781-862-1955 Mass. 405900 I I :..- / Respectfully submitted, . . 46 John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing motion has been to all counsel of record on this r, day of October, 2002. )  ,- / / ,-) ( ./ J26 7 : /_,,,/ \u0026lt;\"// / -1 :./ c)---r. '-1 - 1  /, r ,1 ,J\\ 'l,/.v,__(,'f 1 1-v ,: __,,, 2 RECEIVED OCT 1 7 2002 OFACEOF DESEGREGATION MONITORING UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MRS. LOREN JOSHUA, et al. KATHERINE KNIGHT, et al. ORDER OCT '1 C 2002 JAMES \\'I'. L'i -=RK Qy: ___ -\"t.L--=ll'~.\u0026amp;..\u0026lt;;::;:,...,..,.~~ Defendants Intervenors Intervenors Joshua Intervenors have filed a pleading entitled \"The Joshua Intervenors' Motion for Relief Concerning the ODM Budget.\" Paragraph 4 of this pleading reflects that, \"(a)ppeal of the court's merits decision is likely.\" If an appeal is to be taken, Joshua's motion is considerably premature. Following the procedure used in the past in this case (and Eighth Circuit directives), once a proposed budget is submitted by the ODM, I will enter an Order attaching a copy of the proposed budget and will provide all parties an opportunity to file objections or comments. ! To my knowledge, no proposed budget has yet been submitted, and; if an appeal is taken, it is unlikely that there will be any significant changes in the budget until the appeal is decided. Accordingly, because Joshua's motion is premature, it is denied, without prejudice. rfl IT IS SO ORDERED this 11_ day of October, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR~(~ ON\\o \\ l~ 10 2..- 8YJ\u0026gt;.1~~~-;;_=.....- U. S. DISTRICT JUDGE { .,, 6 8 8 RECEIVED IN THE UNITED STATES DISTRICT COURT OCT 2 1 2002 EASTERN DISTRICT OF ARKANSAS OFACE OF WESTERN DIVISION DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL  DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS PCSSD MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE PCSSD for its motion, states: 1. Plan 2000 requires that: \"An elementary school, located around 145th Street and a middle school or junior high school in the Crystal Hill/Maumelle area will be built.\" 2. The PCSSD proposes to acquire a site located at Carnahan and Murphy Drives in Maumelle, Arkansas and to construct its new middle school there. 3. The PCSSD proposes to build a school with a capacity of 1,000 students and to reserve 200 seats for M to M students. 4. The history of the site selection process, statistical projections concerning racial balance and other pertinent information is set forth in the accompanying memorandum. WHEREFORE, PCSSD prays that its motion be granted and for all proper relief. 373871-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 CERTIFICATE OF SERVICE On October 22, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 373871-v1 2 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 RECEIVED IN THE UNITED STATES DISTRICT COURT OCT 2,i 2002 EASTERN DISTRICT OF ARKANSAS OFACE OF WESTERN DIVISION DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS MEMORANDUM IN SUPPORT OF PCSSD MOTION FOR APPROVAL OF MIDDLE SCHOOL SITE Plan 2000 Plan 2000 requires that: \"An elementary school, located around 145th Street and a middle school or junior high school in the Crystal Hill/Maumelle area will be built.\" This Court approved a district-wide conversion to middle schools on June 4, 2001. Accordingly, this request is specifically to build a middle school to be located at Carnahan and Murphy Drives, Maumelle, Arkansas. A Brief History 1. Pine Forest Elementary School remains the only PCSSD school within the city limits of Maumelle. Pine Forest Elementary School was built in 1980. The present capacity of the school as used this year is 556 .. Maumelle was incorporated in 1985 with a population of 4,359. Today, the population of Maumelle is approximately 10,557. 369448-v1 2. Since its inception as a town in the 1960s, junior and senior high students from Maumelle have all been bused to Oak Grove Junior-Senior High School. As noted in previous filings with this Court, the PCSSD desires to convert Oak Grove into a 9-12 high school and to construct a 6-8 middle school to substitute for the current Oak Grove Junior High School. 3. Currently, Pine Forest Elementary, which would jettison its sixth grade under this proposal, can accommodate only 63% of K-6 children residing in Maumelle. The remainder are currently bused to either Crystal Hill Elementary or Oak Grove Elementary. Under this proposal, both Crystal Hill and Oak Grove Elementary would become K-5 schools. 4. To accommodate current M to M sixth graders at Crystal Hill and to otherwise help realize a fully intergraded middle school, the PCSSD would reserve 200 seats at the new middle school for M to M students. 5. The PCSSD Board of Directors voted 6 to Oto seek approval for a school located within Maumelle at their meeting held on November 13, 2001. Advantages of a Maumelle Site 6. The proposed school will allow the PCSSD to move toward completing its conversion to the middle school system and will relieve over-crowding at the landlocked Oak Grove Campus. 7. The proposed school will allow the PCSSD to establish a middle school with an interdistrict feature offering more choices and grade levels particularly for those LRSD students who currently attend Crystal Hill Elementary. 369448-v1 2 8. The PCSSD proposes to construct the school with a capacity of'1,000 students providing room not only for the 200 seats reserved for M to M students 1, but also space for students who can be attracted from the local charter school, area private schools and children who are currently being home-schooled. 9. The PCSSD proposes to begin construction by April 1 of 2003 so that the new facility can be open for education by August of 2004. The PCSSD requests approval of this motion as early as reasonably possible so that sites specific work can be completed prior to the April 1, 2003 commencement of construction. 10. The PCSSD proposes to pay for the acquisition and the construction of the school by re-financing existing debt as approved by the voters on September 17, 2002. The Site Selection Process 11. On January 17, 2002, Dr. Henderson, then Assistant Superintendent for Support Services and now Interim Superintendent, addressed approximately 150 parents at the Pine Forest PTA meeting regarding the progress toward selecting a site for a new middle school. Five different proposed sites were highlighted. 12. On February 4, 2002, Dr. Henderson addressed the Crystal Hill Elementary PTA meeting. Again, approximately 150 parents were in attendance and the same five proposed sites were reviewed with them. 13. Dr. Henderson addressed the Oak Grove Elementary PTA meeting on March 5, 2002. Approximately 90 parents were in attendance. On this occasion, seven 1 By agreeing to this reservation, the PCSSD is assuming that M to M funding as currently configured and provided will remain in effect for the foreseeable future. If such funding is reduced or eliminated in the future, the continued reservation of such seats would likely prove impossible. 369448-v1 3 proposed sites were described. 14. By letter dated March 13, 2002, Dr. Henderson invited the Joshua lntervenors to serve on the Site Selection Committee. By letter dated March 15, 2002, Mr. John Walker, on behalf of Joshua, declined the invitation to participate. 15. By memo dated March 19, 2002, the Pulaski Association of Classroom Teachers nominated Diane Jones to serve on the Site Selection Committee, as a Knight intervenor. 16. By memo dated March 14, 2002, the principal of Crystal Hill Elementary School forwarded the names of four parents who desired to serve as members of the Site Selection Committee. One of those is a parent of an M to M student attending Crystal Hill. Oak Grove and Pine Forest Elementary Schools provided a bi-racial list of committee members by telephone. 17. A preliminary meeting of the Bi-Racial Site Selection Committee, which included representatives of ODM, was held on April 23, 2002, at Pine Forest Elementary School. 18. The second meeting of the Site Selection Committee was held on April 29, 2002, at Crystal Hill Elementary School. As part of this meeting, the Committee physically visited the seven possible sites. 19. As the process continued, some of the sites were deleted for various considerations including costs and lack of availability. 20. A copy of the minutes of the meeting held on April 29, 2002, is attached as Exhibit A. It includes capsule descriptions of each site evaluated including information concerning costs. 369448-v1 4 21. The next meeting was held May 8, 2002, at Oak Grove Elementary School. 22. A revised list of the Site Selection Committee members as of May 1, 2002, is attached as Exhibit B. 23. At the Oak Grove meeting, an initial vote was taken to rank the available sites. A final meeting was held on June 10, 2002, at Pine Forest Elementary School. At the end of the process, the site described in Paragraph 1 of this memorandum was selected by the Committee and approved by the School Board. Statistical Considerations 24. As part of the Court approved process for building Crystal Hill Elementary School, the PCSSD agreed to reserve up to 399 seats at Crystal Hill for transferring LRSD students. The construction of the middle school would eliminate the sixth grade at Crystal Hill. It is appropriate to reserve, at a minimum, that prorata number of seats at the new school for LRSD students. 25. Excluding pre-K, there are seven grades at Crystal Hill including kindergarten. This equates to 14% of the seats. 14% of 399 is 56 seats. 26. This number, however, is not sufficient to reach the long-standing PCSSD goal of a minimum of 20% African American students at every school. Accordingly, the PCSSD proposes to reserve a total of 200 seats for eligible M to M transfers at the new school. This would provide 10% of the African American student body if the school is built to house 1000 students. 27. This number coupled with the African American student population currently residing in the Crystal Hill, Pine Forest and Oak Grove zones will be sufficient 369448-v1 5 to safely populate the new school at at least 20% minority. An examination of the current fourth, fifth and sixth grades at those referenced schools demonstrates this projection. Crystal Hill Pine Forest Oak Grove 4\"' Grade Black Students 4\"' Grade Black Students 4\"' Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 51 51 2 9 11 5 9 14 5'\" Grade Black Students 5'\" Grade Black Students 5'\" Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 51 51 0 20 20 1 6 7 61 \" Grade Black Students 6'\" Grade Black Students 6'\" Grade Black Students MtoM Resident Total MtoM Resident Total MtoM Resident Total 38 38 3 8 11 4 17 21 140 140 5 37 42 10 32 42 28. To make the projection, one should consider both the M to M students currently attending 41 \\ 5th and 6th grade at these schools, together with the resident African American population in these zones. This totals 224 students. This number, as compared to 1,000 seats, projects a minimum population of over 22% African American at the new middle school. 29. Overall, the latest census figures project 7 40 school children between the ages of 12 and 15 years old will be resident within the city limits of Maumelle by the . - year 2005. (Please see Exhibit C). This, together with the students who will be transferred from the Oak Grove area together with the projected M to M students, dictates sizing the school to accommodate 1,000 students. Staffing 30. There should be no negative affects on current staffing. While the Oak Grove Junior/Senior High will be no more, the new middle school will require similar, if not identical, administrative staffing. 369448-v1 6 31. The same students who are currently taught at the sixth grades at the three elementary schools will simply attend the new middle school. The same students who would be seventh and eighth graders at Oak Grove Junior/Senior High School will simply be attending the new middle school but will require the same number of teachers as the District currently employs at the sixth grade in the elementary schools and at the seventh and eighth grades at Oak Grove. Attendance Areas 32. The \"attendance zone\" for the new middle school will be identical to the current attendance zone for Oak Grove Junior/Senior High School. Accordingly, there will be no need to change any attendance zones. Transportation 33. Currently, all secondary Maumelle students are transported from ', ... Maumelle to Oak Grove for grades seven through twelve. Under this concept, resident Maumelle students would now be allowed to attend grades six, seven and eight in their resident community but would continue to be transported for grades nine through twelve at Oak Grove High School. Those Oak Grove students currently attending Oak Grove Junior High School would be transported to Maumelle for their middle school years. The PCSSD believes that this arrangement generates greater equity for the affected communities as the transportation factor is more equally shared under the new arrangement. 34. M to M students would continue to be transported by choice. That is, since they elect to be M to M students, they are not \"assigned\" to the schools they select. Under this proposal, they would simply have the option to continue in an 369448-v1 7 interdistrict setting that includes the seventh and eighth grades and does not terminate at the sixth grade. WHEREFORE, the PCSSD prays that the Court approve the location of a new middle school located at Carnahan and Murphy Drives, Maumelle, which would reserve 200 seats for M to M transfer students and for all proper relief. 369448-v1 Respectfully submitted, WRIGHT, LINDSEY \u0026amp; JENNINGS LLP 200 West Capitol Avenue, Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 FAX: (501) 376-9442 By _ ....,...._~--..,..:....;:;=-a.__ _____ _ A nty Special s 8 CERTIFICATE OF SERVICE On October 22, 2002, a copy of the foregoing was served via U.S. mail on each of the following: Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72201 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 West Capitol Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 369448-v1 9 Mr. Dennis R. Hansen Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 12201  Mr. Richard Roachell Roachell Law Firm P.O. Box 17388 Little Rock, Arkansas 72222-7388 PULASKI COUNTY SPECIAL SCHOOL DISTRICT Donald J. Henderson, ED.D. Assistant Superintendent DIVISION OF SUPPORT SERVICES 925 East Dixon Road/P.O. Box 8601 Little Rock, Arkansas 72216 (501) 490-2227 Ext. 209 Fax: (501) 490-0483 Minutes of Crystal Hill/Maumelle Area Bi-Racial Selection Committee Meeting April29,2002 Dr. Don Henderson opened the meeting by handing out a_ meeting agenda and a sign-in sheet for attendees to sign. Dr. Henderson provided several handouts to the attendees and discussed each handout as .they were distributed. Comments and questions were made during the handout process. Dr. Henderson introduced Mr. Jim Sharkey, City of Maumelle, who went over the possible sites. Mr. Sharkey had several map displays that helped show the location of the sites. The sites discussed were six sites from the Maumelle area and the site adjacent to Crystal Hill Elementary owned by PCSSD. Sites 1 and 2 are owned by the City of Maumelle and land costs would be $25,000 per acre. If one of these sites is selected the City would provide an access road and utilities to the site. Site 3 is along Maumelle Boulevard north of the Kroger Store. This site originally was 19 acres but due to a recent partial sale the area now available is 12 acres. Additional acreage is available from adjacent property owners so that a 20 plus acre site could be obtained. The owners of these lands would want to do some type of land swap rather than sell the properties. Access and utilities are available to this site. Site 4 is a 19-acre site at intersection of Naylor Drive and North Odom. Asking price is $50,000 per acre. Access and utilities are available to this site. - Site 5 is a 42-acre site north of the Molex Plant. Needed acreage would be available at $1 .00/SF ($43,560 per acre). Access and utilities are available~to 1111 ___ 1111!11_IIII this site. . EXHIBIT I Site 6 is an 18-acre site owned by Baptist Health. Addition acreage is available from adjacent property owners so a 20 plus acre site could be obtained. Price is in the $2.00 to $2.50/SF ($87,120 to $108,900 per acre) range. Access and utilities are available to this site. Site 7 is property owned by PCSSD that is adjacent to Crystal Hill Elementary. Approximately 20 acres of the 30 acres originally purchased for an elementary/middle school site is available for a middle school. The property value in this area is probably in the $3.50 to $5.00/SF ($152,460 to $217,800) range. This site could be used in a land swap if needed. Following Mr. Sharkey's presentation a field trip via PCSSD school bus was made to visit each of the possible sites. The field trip concluded at approximately 8:00 PM. Next meeting of committee will be at Oak Grove Elementary on Wednesday, May 8, 2002 at 5:30 PM.  Revised 05/01/02 CRYSTAL HILUMAUMELLE AREA MIDDLE SCHOOL SITE SELECTION COMMITTEE COMMITTEE MEMBER Terri Ayers ( j. ; 12 Mine Hill ; I No. Little Rock, AR 72118 758-2861 / Russell Laster 24 Hogan Drive Maumelle, AR 72113 851-2151 j Ms. LaBrenda Cohens 1 \u0026lt;1j ').. ?- 7-022 Marche Lateral Road No. Little Rock, AR 72118 851-1717 Mr. Anthony Gross ~,- ., 10711 Mundo Road No. Little Rock, AR 72118 r t \u0026gt;.- Ms. Diane Jones _,} r  123 Ridgeland Drive  Maumelle, AR 72113 851-8188 / M s. P am Skile s ..f,. . :,.. i ,,. \".I  ': .;_ 13 Havenwood Lane 1\\ 1 Maumelle, AR 72113 753-7653 / Ms. Pam Roberts 117 Carnahan, Suite 3 : .1. :.  {:'j : i.__:,tJJ :,..., Maumelle, AR 72113 851-9300 ,11'1s. Essie Coffee .i'. 1),/ 13916 Old Maumelle Rd. Maumelle, AR 72113 851-2696 I ,. ! v'Walter Pace , l-s( i'-,  25023 Highway 365, North Maumelle, AR 72113 851-1388 :. : . \\ ~ .. ~\\ ~ REPRESENTING Crystal Hill Elementary Parent Crystal Hill Elementary Parent Oak Grove Elementary Parent Oak Grove Elementary Parent Knight Intervenors Community Person PCSSD School Board Member District Bi-Racial Committee District Bi-Racial Committee I EXHIBIT /3 -/4s. Mary Scruggs 8 Hickory Place Maumelle, AR 72113 851-8450 -l -.. .. - vl\\1r. Brent Lowrey J. :;.!' . '. (t\\.; 14505 Berberich No. Little Rock, AR 72118 803-4456 . /4r. and Mrs. Reggie Davis _  4 Holly Brook Cove :,_.\\ ';\\) I 1 Maumelle, AR 72113 851-2177 , Mrs. Nancy Foster 12 Barber Drive Maumelle, AR 72113 851-8708 / 1-Mrs. Shenel Sandidge '.  : . _ ,, 17 Pin Oak Loop (_., . Maumelle, AR 72113 \\ (_.-, :,; if_, ,. f:, ~..l 57(H) 682-7893(W) Mrs. Carol Worley 12 Stoneledge Drive i . } \\ ( . Maumelle, AR 72113 'r'.\\ r: : , , . J 851-8208 (H) ~2.1'.\"~.5~5 (W) v1'1rs . Melissa Guldin Office of Desegregation Monitoring One Union National Plaza r: ,, t ! 124 West Capitol, Suite 1895 , :\\\\ : \\ Little Rock, AR 72201 376-6200 / Mr. Horace Smith Office of Desegregation Monitoring One Union National Plaza ('.  i : 124 West Capitol, Suite 1895 Little Rock, AR 72201 376-6200 .)Mr. Richard Crider 26 Sugarloaf Loop Maumele, AR 72113 851-8846 . . .... -   ..  --  --~--- --- ......... . Oak Grove Elementary Parent , Oak Grove Elementary Parent :,u' Pine Forest Elementary Parent Pine Forest Elementary Parent Pine Forest Elementary Parent Office of Desegregation Office of Desegregation Crystal Hill Elementary Parent . ( . I ~ 's. Barbara Means '.: __ l.~ / M ... 1J, tI; t ,.;-,L. .. ~_r j \"J tv'~ ,'\\\\\": _. 13500 Ridgehaven Road G ; . \\( U i C ..-r \u0026lt; ,.\\ Little Rock, AR 72211 223-8477 Dr. Donald J. Henderson. 925 East Dixon Road Little Rock, AR 72206 490-6209 Dr. Martha Johnson 925 East Dixon Road Little Rock, AR 72206 490-6205 Mr. Jim Sharkey, CCD Director Community and Economic Development 550 Edgewood Drive, .Suite 590 Maumelle, AR 72113 Mr. Junius Babb Assistant Superintendent Little Rock School District 501 Sherman Street Little Rock, AR 72202 Mr. Bobby Acklin North Little Rock School District 2700 North Poplar Street North Little Rock, AR 72114 Crystal Hill Elementary Paren,t PCSSD Assistant Superintendent PCSSD Director of Equity ., . c~;s~s~,ta-_f~ ;r -\u0026lt; . -~ . Pulaski County Special School District . Pro:pQsed)\\fi:dd'}e S~bool ,.  According to the 2000 U.S. Census, 1,984 children between the ages .of 5 to 17 years old reside within-the City of Maumelle . . The average annual growth rate for.this age group w~ 4%, between the y.eatS 1990 and 2000. Based on:this continued average rate of growth, the City of Maumelle should have . approximately 2; 146 children in the-year 2002 and 2, 4l4 children in the: y~ar-2005. According to the 2000 U.S. -Census, 591 children between the ages of 12 to 15 years old . reside within the-City of Maumelle. The average annual growth rate for this age group was 4. 6%, between the years 1990 and 2000. Based on this continued average rate of growth, the City of Maumelle should have  approximately 646 children in the year 2002 and 740 children in the year 2005. According to the 2000 U.S. Census, 431 children between the ages of 13 to 15 years old reside within the City of Maumelle. Unfortunately, the U.S. Census did not obtain data on 12 to 13 year old children. Source: Mr. Jerry L. Bell Assistant Research Specialist Census State Data Center UALR Institute for Economic Avancement Tel: 501-569-8538 EXHIBIT I ~ RECEIVED C lr-D \\f- li--..J\"l'ff OCT 2 9 2002 OFACEOF DESEGREGATION MONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERJ.'-J DIVISION U s OISlRICT ~~SAS EASTE.RN DISTRICT oc, 2 5 2002 JAMES W. McCORMACK, CLER~ B'f.- OE.P CLE.RK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO.I, ET AL DEFENDANTS INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MOTION FOR HEARING REGARDING RELEVANCE OF 28 U.S.C. 455 TO THE PRESENT PROCEEDINGS The Joshua Intervenors respectfully move the Court to set a hearing for the purpose of determining whether 28 U.S.C. 455 has any relevance to the present proceedings. The Joshua Intervenors respectfully submit that 28 U.S .C. 455 states: (a) Any justice, judge, or magistrate [magistrate judge J of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questions. (b) He shall also disqualify hi\"mself in the follovving circumstances: (]) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judg eor such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or -1- expressed an opinion concerning the merits of the particular case in controversy; (d) For the purpose of this section the following words or phrases shallhave the meaning indicated: (1) \"proceeding\" includes pretrial, trial, appellate review, or other stages of litigation; In reference to 28 U.S .C. 455(b)(2), the Comt is required to disqualify itself\"where in private practice he served as a lawyer in the matter in controversy ... \" Undersigned counsel are informed that the Honorable District Court, while in private practice, appeared in 833 F.2d 113 (8th Cir. 1987) in re: Little Rock School District vs. Pulaski Countv Special School District, No. 1., Nos. 87-2150 and 87-2363, before the United States Court of Appeals for the Eighth Circuit. The cited Opinion addressed the issue of whether Judge Henry Woods should be disqualified. The disqualification - issues had been raised by several of the parties including, notably, the Board of Education of the Little Rock School District. See attached Opinion, Exhibit A. The Court of Appeals determined \"that errors of procedure took place but we do not agree that it is reasonable to infer partiality or bias on the part the able and experienced district judge.\" The Court of Appeals apparently upheld the arguments of his honor which were made while His Honor was in private practice. The Court of Appeals did not explain its reasons in that Opinion but did so in 839 F.2d 1296, 1299. The disqualification issues, which were presented by His Honor while in private practice, were addressed in a lengthy Opinion on pages 1301, 1302 and 1303. The Court of Appeals, in that same Opinion, also addressed many of the issues which are raised or could have been raised in the present proceedings including compensatory programs in the LRSD, 839 F.2d 1306, magnet schools, 839 F.2d 1309, and teacher assignments in LRSD, 839 F.2d 1296. -2- The Court , in writing its Opinion dated September 13, 2002, included virtually all the citations from the Court of Appeals (see Exhibit B) hereto but did not refer to, mention or address these two impo1iant Opinions in which the Collli, participated as a trial attorney in private practice. Plaintiff's counsel have sought to obtain the briefs which were filed with respect to Nos. 87-2150 and 87-2363 by His Honor, while in private practice, and any other briefs or activity which address that subject and have been unable to do so in a timely fashion. Their own records are incomplete regarding those filings . Request has been made of the Clerk of the Court of Appeals, however, to retrieve such briefs of all the parties regarding the two cited cases and are informed by the Clerk of that Court that he will retrieve the file. See Exhibit C. The Joshua Intervenors request that the Court convene an evidentiary hearing for the purpose of exploring the role the Court had, if any, while in private practice with respect to the subject case. - In this respect, counsel having just learned this information, also notes that the Court has employed as a law clerk of the Court's staff one of the original lawyers who filed the instant case, Ms. Janet Pulliam. Counsel also note that at least one of Joshua counsel is a friend of Ms. Pulliam. Ms. Pulliam and her associates, however, are listed as counsel of record in at least these appellate citations; 778 F.2d 404, 407; and 959 F.2d 716. She was in association with Phil Kaplan and other counsel in833 F.2d 112 where Mr. Kaplan's name appears before the Honorable William R. Wilson, Jr. and she was in association with Mr. Kaplan in 839 F.2d 1296. This is confirmed by the fee application of counsel for the LRSD which went to the Comi of Appeals in 1992. See Exhibit D. The Joshua Intervenors believe that 28 US.C. 455 issues are raised which should be developed at a hearing. Counsel are not moving for the Court to recuse at this time; however they would like to have an opportunity to review the proceedings that are set fo1ih above and any other ,., - .) - writings to which the Court was privy, while in private practice, between himself and his client, Judge Woods. In that way, the Com1 and the pai1ies would be in a better position to address the applicability of 28 U.S.C. 455. FURTHERMORE, the Joshua Intervenors respectfully further pray that at such heaiing the Court 1) inform counsel whether the present assignment of this case to this Court considered His _Honor's earlier role in the case while in private practice, in the light of28 U.S.C. 455(b)(2); 2) the basis for the Com1's conclusion that it did not have a duty to recuse pursuant to 28 U.S.C. 455 (b )(2); and 3) request that the Court, if possible, make available to counsel copies of all briefs which His Honor has filed in this case while in private practice. '; 7 / ,. ./ , I / I .  I, . I  //\\ /--J';,( -~-+ ,/_ ~ '-c,'2-r,.;,f,-/'Lu:..._;, Robert Pressman, Mass Bar No. 40960 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted, Jo n W. Walker, AR Bai No. 64046 JOHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (50 l) 374-3 758 (501) 374-4187 (Fax) Rickey Hick1\u0026lt;_9{ Bar No. 89235 -. Attorney at L-a:w Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 -4- \\ CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing: hqf been serzs:9- fl -~ ,,,and U.S. Mail, postage prepaid to the following counsel of record, on this i-5 , l\\_day of cfl-. '/?-\u0026amp;..., 2002: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 -5- Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rocle Arkansas 72201 Ivlr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 3 833 FIWERAL llEI'ORTEU, 2d SE!t!ES In 1e LJ'l\"J'LI~ HOCK SCHOOi, lllS'!'lllC'r, Petilloncr. LITTLE HOCK SCIIOOL DIS'fJtl C:r, Appellant, V. PUl,ASIU COUNTY SPECIAi, SCHOOi, DlS'l'Rl\u0026lt;.:I' NO. I, Appcllcc. Nos. 87-2150, 87-2303. United States Court of Appeals, Eighth CircuiL Submitted Nov. 3, 1987. Deciclcd Nov. 6, 1U87. Supplemental Opinion Filed l'eb. 9, 1988. l.,iligalion was hroughl involving election for school board positions. The Uniled States District Court for the Eastern District of Arkansas, Henry Woods, J., direct,. ed elections for three school board positions and nppenl was filed and petition for writ of mandate was filed asking for disqualification of district coutt judge. The Court of Appeals, Arnold, Circuil .Judge, held Lhnt: (1) fact Lhat lawyer wilh whom trial judge once practiced npp\"ared at one time in nnolher case consolidated with pending cnse did not require district court judge's disqualification, and (2) enors of procedure in p1oceeding did not give rise lo reasonable inference of parLialily or bias so as to require disqualiricalion of district courL judge. Ordered accordingly. J. Judges e,,45 Fact that lawyer with whom district court judge once practiced appeared at one lime for amicus curiae in case consolidated with and Inter severed from pending case did not warrant disquali(icalion of district court judge; consolidated case was closed case, or at most, dormant, when it was consolidated and such fleeLing and tenuous connection did not require recusal. 28 U.S. C.A.  455(n), (h)(2). l.   Herny Woods, Unile\u0026lt;I Slates Dislrlct 2. Judges \u0026lt;S=-~9(1) Procedural errors which occurred in litigation involving school board election did not give rise to reasonable inference of partiality or hias so as to require disqualification of district court judge. 28 U.S.C.A.  465(a), (b)(2). P.A. Hollingsworth, LiLtle Rock, Ark., for appellant. William R. Wilson, Jr., Little Rocle, Ark., fot Judge Woods in mandamus. Phil Kapla,i, Little Rock, Ark., for Little Rock School Dist.  Sam Perroni, Little RocU, Ark., for Rayburn. Phillip Lyon, Chicago, 111., for North Lit,. tie Rock. Before HEJi NEY, ARNOLD, and WOLLMAN, Circuit Judges. ARNOLD, Circuit Judge. The two proceedings captioned above, to gether wiLh a number of appeals raising related issues, were argued before us on November 3, 1987, in Little Rock, Arkansas. Two of Lhe many important issues p1esenled deserve immediate answers: (1) Shall the school-board election now scheduled for December 8, 1987, in the Little Rock School District (LRSD), be allowed to lake place? (2) Who shall preside over the District Court! No. 87- 2368 is an appeal by LRSD from Lhe DistricL Court's I order of October 1, 1987, directing that elections for three school-board positions be held on December 8, 1987. This order is affirmed. We find no error of law, abuse of discretion, or clearly erroneous finding of fact in the District Court's order. It is ou, understanding that LRSD is free now to pursue actively the search for a new superintendent, and that it will be free to hire someone right after the elec tion. No. 87-2160 is a petition for writ of mandamus filed by LRSD, asking us to Judge for the Eastern District of Arkansas. APPLICATlON OF WOOD 113 Cltcns833 F.211 ltJ (SlhClr. 1981) declare that Judge Woods should have dis- The judgment in No. 87-2363 is affirmed qualified himself. In the alternative, it is The petition for writ of mandamus in No. suggested that we simply direct that anoth 87-2160 is denied. We t.lirect lhnt our rnnn er judge be assigned lo this case. ln addi dates in these lwo cases issue forthwiU1 lion to the petition for mandamus, various 1 t is 50 ordere\u0026lt;l. appeals also include suggestions for Lhe disqualification of the trial judge. We are not satisfied that such drastic re1ief is ap propriate. [1] Two main grounds for recusal are urged. First, a lawyer with whom Judgt? Woods once pracLiced appeared at one Lime for an amictis curiae in a case called Cla,t, v. Board of Educ. of the Little Rock School Dist, No. LR-C-64-155. The o;otrict Court first consolidated Cla,k with the instant case, then later severed it and returned it to the docket of another judge. Disqualification is sought under 28 U.S.C.  455(b)(2), which requires disqualification \"where in private practice . . a lawyer with whom [the judge] previously prncliced law served during such association as a lawyer concerning the matter.\" We disagree with this argumenl Clark was a closed case, or at most dormant, when it was consolidated with this one, and in any event it has now been severed. We do not think that such a fleeting and tenuous con nection between the present case and the judge's p3rlner's activiLies while in practice years ago, was intended by Congress to require recusal. [21 In addition, Lhe parties seeking disqualification assert that because of certain procedural improprieties the judge's \"impartiality might reasonably be questioned.\" 28 U.S.C.  455(a). We agree that errors of procedure took place, but we do not agree that it is reasonable to infer partiali ty or bias on the part of U,e able and experienced District Judge. He has performed with diligence in circumstances that are anything but easy. We decline to re rnove him from the case.  Another opinion will be filed in due course further explaining our reasons for the conclusions expressed today with re spect to the election and disqualification matters, and addressing as well the other questions raised in these cases. In re Applicalion of Lnny A. WOOD lo Appear Before the Grnnd Jury (Misc. 85-L-02). Appcnl of UN11'ED S'l'A'fl~S of America. No. 86-1719. United SLnl.es Court of Appenls, Eighth Circuit Submilled March 10, 1987. Decided Nov. 12, 1987. Former conspirncy defendant, who w; acquilted, broughL applicalion to mnke inc vidual presentation lo grand jury concer ing allegations of perjury by F'Bl agent. United States ALtorney presented alleg lions lo grand jury, which declined to t.al acLion. Applicant then filed petition alle ing matter had not been fairly present, nnd again requesting permission to nppe before grand jury. The United Slntea D lrict Court, District of Nebraska, Wan, !{. Urbom, J., issued order lo United St.ul Attorney of Disll\"ict to make represen1 lion of matler, or applicant's petition war be granted. The United States appeal\u0026lt; The Court of Appe\u0026gt;tls, Henney, Cir\u0026lt;! Judge, held that (1) District Court's ori was proper exercise of supervisory pow and (2) order did not violate separation powers. Affirmed. f\u0026lt;'agg, CircuiL Judge, dissented w opinion. ~ --  \u0026lt;.\u0026gt; ~- ..) ---:s: -~ l-l{ - 921 F.2d 1371 (1990) 949 F.2d 253 (1991) 56 F.3d 904 (1995) 148 F.3d 956 (1998) 243 F.2d 361 (1957) .369 F.2d 661 (1966) 426 F.2d 1035 (1970) 449 F.2d 493 (1971) 465 F.2d 1044 (1972) 705 F.2d 265 (1983) 778 F.2d 404 (1985) - 971 F.2d 160 (1992) 131 F.Jd 1255 (1997) 83 F.Jd 1013 (1996) 112 F.3d 953 (1997) JOHN W. WALKER SHAWN CHILDS ivlr. j\\,fichael Gans United States Court of Appeals for the Eighth Circuit Thomas F. Eagleton Court House Room 24.329 111 South 10th Street St. Louis, MO 63102 JOHN vV. 'vVALKER, P.A. A'ITORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FA.t'C (501) 374-4187 Vi.a Facsimile - 314-244-2780 October 22, 2002 Re: Case No. 84-1543 Little Rock School District v. Joshua; Case No. 84-1620 Little Rock School District; OF COUNSEL ROBERT JVIcHENRY. P.A. DONNA J. 21-IcHENRY 8210 HENDERSON ROAD W'ITLE ROCK. ARKANSAS i2210 PHONE: (501) 372-3425  FAX (501) 372-3428 EM.ill: mchenryd@swbell.net Case Nos. 87-2150 and 87-2363 - Little Rock School District v. Pulaski County Special School Dear Mr. Gans: Would you kindly search your files and advise whether you have in your archives the briefs of the Appellants and the Appellees regarding the above captioned cases. I am panicularly interested in whether there were briefs filed on behalf of the District Court in the above captioned cases. JWW:js Thank you for your attention to this matter. ~incerely, %9 F'JWBJIJ\\L ItEPOitTJm, 2d SERJES Cl'lTl,E R\u0026lt;JCI( SCHOOL D!STR!CT. Appollant, Aune Milchell; Bob Moore; Pfl.t Gee; Pal Rayburn; Mary .T. Gngej North LiHli Roch CIDs:;room Teachers Associalion; Pula!;Jd Association rJf Clai-~room TeaChP.r~; Litf.le Rock Cl~ssroom 'J.'':!:achers Association; Al~xa Arm slron:;; I{arlos Armsfronr;; Etl Bullinv ton; 1\\h,yyam DcJ.vjs; .Jani1.::e Deni: John Harrison; Alvin 1-J.ndson; Talia Hut.Ison; Milton .Jacksoni Lor\u0026lt;2:ne Jo.~ht1a; Lesl.ie .lo!'lhu;:,.; Stacy .Joshua: Wayne .Joshuai ltatherine f{nighl: Sara Matthews; Ber.it)' Mcl{inney; .Derr iclt Milesi .hrnlCe Miles; .John M. Mi l2s; NAACPi Joyce Person; Brli1n Tnyl01:; Hilton Taylor; Par5l,a 'f~ylor: RfJbert Willingham; 1'011y~ Willi11g. ham, Jnterve11orn, V. PULASIU COUNTY SPECIAL SCHOOi, D_18TJ1ICT II I; North Little . Rock School DislrJct; Ll;!:OI\\ B:irues; Sheryl Dunn; Mac Faulhn~ri Ilichanl A. Gid, ding:,; Mari:,.rme Go::;ser; Dl111 Hind man; Shirley Lowery; Bob Lyon: GCorge A. McCrary; Bob l\\lf)rnr.; Stert Morley; Buddy R~ines; D~vid Sain: Hoh Stender; Dole Wnrd; John \\VRrd: Judy Weari Gni.inger Williams, Dcfen- 1lant-::, PhiliJl E. Kapla11; JanP.t PulH::i.mi John Bi.lheilner; F.A. Holling!'iworth, Appel lees. LITTLE llOCK SCl!OOL JJJSTHICT, Appellee, Aune Mitchell; Bob P.-'loore: Pat Gee; Piit R~Jburn; Mary .T. Gage; fforth Lilllr . Roel( Clrtl=i!'il'oorn Teachers /\\ssociation: Pul::u,ld As:mciation or Classroom Teachers; Little Reel\u0026lt; Classroom Te::tchets Assnc.ialion; Alexa J\\_rm!' it.ro11g; I{arlos An11!'itron11; Ed Dul/ingt, 111; l{huyyam Dads; Janice Deni: .Jo h 11 Hnnisun; Alvin Hut.Ison; T:1li.i ; . t: i.,l'l'TLE 1t0CJ{ SCHOOL lHS'l', \" Plll,ASIO \u0026lt;)T\\'. 8CltOOL I . 'i.l'I Cllc :i.c: 959 F.,.d 716 (IUh Cir. 1992) Huclsun: Milton Jackson; .l,ur-?:nc Josh- Sara l\\lnU:llcw:,: H\u0026lt;'cl(J' l\\'lcllin ucJ'; Hcr- 110; Le~lie. Joshua; Slncy Joshun; riclr J\\.li les; .Tn ni (e Mi.lr.:r.; Jo hn M. Wr1y11e Joshua; J(alhninc J.{nighl.; Miles; NAACP; Joy\u0026lt;:~ .Pcnm11: Bthrn Sl\\rn ~fa.Llhews: He.ckr l\\ld{ inuer; Der- Taylor: .lli ll.0 1\\ 'l':t)' lor; Par i:: hn TaJ lor; rick ~mes; Janice ntiles; .Juhn I\\'[. lloherl. \\V illi11 p. lrn 111: 'f'onJ'a Willin rr- ~liles; NAACP; Joyce Persol!; Ddan Imm, lulervcnon;, Tr1rlor; Hilto11 Taylor; Pan; lrn. Tay lor; v .  Robert Willi11ghru11: To11yn Will ing- PUl. ,\\Sl\\l CO\\JN'l'Y sn;c.u1. SCIIOOI, ham, IntervenonJ, PULASl{l COUNTY SPECIAL SCHOOL DISTRICT # I: North Little !lock School District: L(!on Barnes; Sher.\\'! D111111: J\\lnc Faullrner; Riclrn rd A. GicldingSi Mnria1111c Gosser; Don Himlmnn; Shirley i..fJtrery: Bob L)'OJli George A. l\\kCrory; Bol, Moore; Sl.c,e ~forley; Butld.r Rnines; Dadd Sain: Dab Stender; Dale \\Varel; .J ohn Wnnl; Judy Wear; Grainger Willin111s, De[en don ls, Philip E. J{nphn; .i~t1et Pullia111; .John IJilhcimer: P.A. llo ll i11gsworth, Appe/la11ls. LITJ'LE ROC![ SCHOOL DIS'l'!llCT. Appelhrnt, Anne Milchclli llolJ l\\foore; Pat. Gee; Pnf: Hayburn; l\\fory .J. Gage: Norlh Little flock C.:las~room Tcad1crs Association; Pulos-kt Assor.iation ur Classro(1m Tenchers; J ,iltle Rock Cla~sroont . Teo.chers J\\.ssodalion; Alcxn Arm-strong; Rarlos Annslro11g; Ed B11fli11r.lo11; l(hayyfuu J.)avi!';; Janice Hcnl.: John Harrison; Aldn Ilml.c;on; 'l'alin Hudson: Milton .fncksoni .Lorc11e .Jo~h. ua; Leslie .Joshua; Sl0;cy J o~ lrn :i; Wa_rne .Jo~lni:i.; !{nllt!!dne JC11 ig-llt.i IJISTl l l CT ff .l: North l,lltlc H.oclt fk hoo l Hist.rid: Leon JJ:in1 1~!;i Sher.1'1 1J111111; .t\\:lnc Ji'1111 llmer; lticJrnnl A. n it1- di 11 r,s; Muri:rnne Om:sex; ])un Jl i1111- 1tm n; Sh irlny l,nwcty: Uob L.Yon: \u0026lt;:cnrirc A. McCrnry; Hoh Moon::; Steve .l\\'lorl~y; Utu111y .1lai 11 e5; 1):1\\'id S:i i1t; Boh Sl:cntlc r; On ie \\Vnnl; John Wnnl; Jud]' Wear; (~ rai11 r~er \\V illi;1111 ~, DP.fen~ Phi.lip R Rapln11: .fmtd I1u11i:1111; Joh11 Bilheimer: P.A .. ll ollin ~!-wmth. Appcll cte,;. Nos. D.l-.tr.3R, !H-1U1R, , .. ,,1 D.l--ZIG2. United Stat.es Court: or Appe:tlf::, gight;h Circuit. Suhmitted ,fan. '1, J992. Decided Marc:li ?..!I, .lH92. .Law firm which ,eprescuted school di$ti ict in schoril de~eg-rcg:ll:io11 Ci\\SC n11plied (or att.orney fees for  ~crv icP.s rendP. rr.,1. The United Stat.e~ .Uisl.rkt Court for I.he gast.r.rn Dist.rid n( Ark~nsas, Snsa11 Web her Wrir,hl:, ,J.1 round thnt. di~trict Wt18 a prevnili11g p:ut_y, l:h:it t.l1e parties hn,I agreed l:lrnt clisl:dct would prosecute foe pct.ilions at firm~ pn~vailing 1ntet,, that di~t.rid wonlrl pay tliffcrP.nr:.c bet.ween \\.heir billed ml.rs \"ml \\ltocr.ed~ u.f nny :tU.oi:11cys1 fees award, and 1.hnt I.he p:trtir.~ hnll rnotlifir. cl their n,rrec111c11l. l,t\u0026gt; providP. that ixro11p :ind firm \\\\;ou ld split: ewinly any aw:tnl mncle h_1 the coo rt. I lir,l.rid nppe:ile,1. The Court of Appeals he.lei I.hat: (1) nmouol: of nwanl was neil .her dearly erro1H?.0115 nor ~huM of ,!iscrnl:ion: (2) (i11din1,r l.h:1t. cnt\\- 1-rnd r.xisl.ed hct:wccn clistr id: hnd firm a11d conl.enL\":: of I.Im cont.rnd w:m supported hy I.he e,,idenr.e; and (B) tlisl.ricl: w:is not e::; l: opp,~d 1-(1 dcf~nd :tj{:dn~I: conlP.nl.ion llrnt superin!:cudent had np;recd l.o firm's ptopost, I for r;o;r,o ~plit in aw~rd of :'tU.ornnys' foes . Affirmed. --:..---____ __ _ RECEIVED OCT 3 1 2002 f:t1 -o UC'.' Mn: f~.fl.JI IN THE UNITED ST A TES DISTRICT coultl5'rt:,~N 8itf~,trl 1 OFFICE OF EASTER.t\"'\\J DISTRICT OF AR.KAJ.\"'\\JSAS DC Hicr,4Jtt;SA.s DESEGREGATIOH MOHITORIHG WESTERN DIVISION JAM T 2 5 lOO By.- s VV Mccc , '2 LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL _DISTRICT NO.I, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL RMA.cic 'L'~F Of: P C(;;;RK DEFENDANTS INTER VEN ORS INTER VEN ORS THE JOSHUA INTERVENOR'S MOTION TO STAY REDUCTION OF ODM STAFF The Joshua Intervenors respectfully move for the entry of an order staying reduction of the - ODM staff, if any, until the final approval of the ODM budget. For cause, the Joshua Intervenors respectfully show the Court as follows: 1. On or about October 14, 2002, Intervenors' counsel learned from an African American staff member of ODM, Ms. Linda Bryant, that she had been given notice of termination as an ODM staff member effective on or about October 15, 2002. Ms. Bryant conveyed to counsel her understanding that her termination was attributable to a directive or requirement of this Couii. 2. Thereafter, in an Order entered on October 16, 2002, this Court recognized that under the law of the case [LRSD v. PCSSD, 971 F.2d 160, 166 (8 1h Cir. 1992)], the pa1iies must have the opportunity for comments and objections prior to final approval of the ODM budget. See Order, para. 3. This Court also wrote that \"no proposed [ODM] budget has yet been submitted .. .. \" Order, para. 4. A. \\j os hua. staymnt -1- 3. The number of ODM staff is a matter encompassed in the ODM budget. 4. In view of the content of the Court's Order of October 16, 2002, it appears that (a) the termination of Ms. Bryant may have resulted from a misunderstanding; (b) alternatively, any actual directive or requirement that Ms. Bryant be te1minated, prior to the completion of the budget-approval process, was inconsistent with the law of the case. WHEREFORE, the Joshua Intervenors respectfully pray that the Court delay any reduction of ODM staff until final approval of the next ODM budget and declare that it was not the Comi's intention that any reduction in ODM staff take place before final budget approval. Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 A: \\joshua.staymnt Respectfully submitted, y' hrr W. Walker, AR Bar No. 64046 / 'JOHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (50 l) 3 74-3758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 Nonh University, Suite 240 Little Rock, Arkansas 72207 (501) 663 -9900 -2- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent by fa~ and U.S. Mail, postage prepaid to the following counsel of record, on this ';2_ ,;1-/4iay of 62-e,6.i..\u0026amp;.-.\u0026gt;c- 2002: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 A: \\jos hua. staymnt Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3 4 72 Mr. Richard Roachell ROA CHELL LAW FIRNf 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-73 88 Jo~;lw. Walker  I_ ., - .) - A.uonz2y at Zc.w 1723 Broad,,vcry Lt..,_,l~ Roe~ ld.7,b:?t.ras ';1206 Te!ephor:e (501) 374-3758 Fr=: (501) 374-418~ .L~\"\u0026lt;{ TR.~\"fSiY.J1SSION COv-:E.R SHEET .... J. Da:ie_ ,- L Io ( J.. c I Zo O --z- 1 .;o.- [ Fa::.. [ $7/-0107) i Re: [ Sender~ (_ YOU S'.!.~OuID R.ECE.:.'i/E [__ __( including cover shee~J] Pd.GE(S), INCLUDING TEJS COvL'?. \u0026amp;\u0026lt;-:.TET. IF YOU DO NOT RECEIVE .tl...LL THE PAGES, PLEASE CALL \"\u0026lt;(501) 374-3758\u0026gt;\" The iD:fur.nmion coi.mined.in tlll! fucs;mile =age is a.ttoraeyprivileged.ao.d coufidenti:il .in:formation im:encied only for the use of tb.e indidua! or entity namd above. Tf the re~e: of mis message is not th.e incencied reci-pie!lt, or tb.e e::nployee or ..g~ ~onsibie ,o ~liver re ro dle in:.;;nd.cd. recrpien.:, you are b.e.--eby ll.O~ed ibar my dissetrinarion. c!L-mbunon or copying of 1bis communication is sn-ictly prohibim. if you have received. dris communic:i.tiOll m =r, pies.se i=.ediE.Ie ilOttty us by ,:clepr..one, and return ,he or:ginal me.;sage to us E.! tb.e above address via die U.S. Pesta! Service. T..:lc.llk you.. ---------------------- ~ RECEIVED OCT 3 1 2002 - OFFICE OF DESEGREGATION MONITORING IN THE UNITED STATES DISTRJCT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRJCT vs. 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al ORDER FILED E U.S. DISTRICT COURT ASTERN DISTRICT ARKANSAS OCT 2 5 2002 ~~Mr-Y~_-s_w=GG'.::~::Q~~::':Q~:.C l!;RK -- ~ PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS Joshua Intervenors' Motion to Stay Reduction of ODM Staff is DENIED because it is moot- please see the Order entered on October 16, 2002. IT IS SO ORDERED this 25th day of October, 2002. W~0.~- UNITED ST A TESDlSTRICT E THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE (~~~~1~1,j~Q~~~~~.~~ 6 9 2 1N THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 RECEIVED PLAINTIFF PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL OCT 3 0 2002 OfFICEOF DESEGREGATION MONITORJNG DEFENDANTS JNTERVENORS INTER VEN ORS PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR HEARING REGARDING THE RELEVANCE OF 28 U.S.C.  455 TO THE PRESENT PROCEEDING Plaintiff Little Rock School District (hereinafter \"LRSD\") for its Response to Joshua Intervenor's (hereinafter \"Joshua\") Motion for Hearing Regarding the Relevance of 28 U.S.C.  455 to the Present Proceeding states: 1. Joshua's Motion should be denied for failing to comply with the requirement of Local Rule 7.2(a) that all motions be accompanied by a brief consisting of a concise statement of the relevant facts and applicable law. Joshua essentially seeks to obtain discovery from the Court to determine whether grounds for disqualification exist and an advisory opinion as to the applicability of 28 U.S.C.  455(b)(2). The LRSD knows of no legal authority for Joshua to obtain discovery from the Court. If such legal authority exists, Joshua should include it in a brief as required by Local Rule 7.2(a). It is well-settled that advisory opinions are rarely, if ever, proper in federal litigation. See Order filed Feb. 19, 2002, p. 1 (Docket No. 3576). 2. Joshua's Motion should also be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C.  455(a) and (b). WHEREFORE, the LRSD prays that Joshua's Motion be denied; that it be awarded its costs and attorneys' fees expended herein; and that it be awarded all other just and proper relief to which it may be entitled. F:IHOME\\FENDLEYILRSD 200 1\\unitary-rcsponsc-mot-hcaring-DQ wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on OctoberZr-, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg.  200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm Plaza West Building 415 N. McKinley, Suite 465 Little Rock, Arkansas 72205 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\\HOME\\FENOLEY\\LRS D 200 I \\unitary-response-mot-hearing-DQ. wpd 3 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL   MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED OCT 3 0 2002 OFRCEOF DESEGREGATION MONITORING RECEIVED OCT 3 0 2002 OFACE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE TO JOSHUA INTERVENOR'S MOTION FOR HEARING REGARDING THE RELEVANCE OF 28 U.S.C.  455 TO THE PRESENT PROCEEDING I. Joshua Cites No Authority Authorizing the Relief Sought. Joshua essentially seeks to obtain discovery from the Court to determine whether grounds for disqualification exist and an advisory opinion as to the appli,cability of 28 U.S.C.  455(b)(2). The LRSD knows of no legal authority for Joshua to obtain discovery from the Court. If such legal authority exists, Joshua should include it in a brief as required by Local Rule 7.2(a). It is clear that Joshua has no right to compel discovery from the Court. See Cheeves v. Southern Clays, Inc., 797 F.Supp. 1570, 1580-81 (M.D. Ga. 1992)(\"At the outset, there is simply no precedent for deposing the presiding judge pursuant to compulsory process in aid of motions to disqualify; and, for a number of practical as well as legal and policy considerations, there is no need or justification for such a procedure.\"). It is equally clear that advisory opinions are rarely, if ever, proper in federal litigation. See Order filed Feb. 19, 2002, p. 1 (Docket No. 3576). For these reasons alone, Joshua's Motion should be denied. II. 28 U.S.C.  455. Joshua's Motion should also be denied because (a) it is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago and (b) the Court's prior representation of Judge Woods does not require recusal pursuant to 28 U.S.C.  - 455(a) and (b). Each of these grounds for denial will be discussed in tum below. A. It is too late for Joshua to seek recusal based on the Court's representation of the Honorable Henry Woods over a decade ago. The Eighth Circuit has consistently held that motions to disqualify pursuant to 28 U.S.C.  455(a) and (b) must be filed in a timely manner. Holloway v. United States, 960 F.2d 1348 (8th Cir.1992)( claims under 28 U.S.C.  455 must be made in a timely manner); Oglala Sioux  Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir.1983) (\"Although 455 does not include an explicit time limitation, we believe that a timeliness requirement is appropriate .... \"); United States v. Bauer, 19 F.3d 409, 414 (8th Cir.1994) (\"This court has held that claims under  455 'will not be considered unless timely made.'\") (quoting Holloway). Parties are required to apply for recusal \"at the earliest possible moment after obtaining knowledge of facts demonstrating the basis for such a claim,\" Apple v. Jewish Hosp. \u0026amp; Medical Ctr., 829 F.2d 326, 333 (2nd Cir.1987), for two reasons: (1) a prompt application affords the district judge an opportunity to assess its merits, and (2) a prompt application avoids the risk that a party is holding back a recusal motion as a fall-back position in the face of an adverse ruling. See In re International Business Machines Corp., 45 F.3d 641,643 (2nd Cir.1995); accord In re Cargill, Inc., 66 F.3d 1256, 1262-63 (1st Cir.1995) (\"In the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns.\"); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472 (11th Cir.1986) (\"Counsel, knowing the f    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. MEMORANDUM OPINION ---- - ------------ PLAINTIFF DEFENDANTS INTERVENORS . __ ., INTERVENORS I. II. ill. N . A072A INDEX Page Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Long History Of Desegregation Litigation .In Pulaski County .............. 11 A. 1956 Through 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. 1973 Through 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. Interdistrict Litigation And Interdistrict Relief . . . . . . . . . . . . . . . . . . . . . . . 16 D. The 1990 Settlement Agreement And Settlement Plans . . . . . . . . . . . .. . . . . 20 E. LRSD's Implementation Oflts Desegregation Obligations Between 1991 And F. G. H. I. J. K. 1995 .... ..... ......................... .... ........ . ..... . . .. 24 Joshua's Request For An Interim Award Of Attorney's Fees For Performing Monitoring Activities After The 1990 Settlement . . . . . . . . . . . . . . . . . . . . . . 33 LRSD's First Attempt To End Federal Court Jurisdiction . . . . . . . . . . . . . . 36 The Pexplexing Final Resolution Of Joshua's Request For Still More Attorneys' Fees From LRSD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Final Approval Of Revised Desegregation And Education Plan . . . . . . . . . . 45 LRSD's Implementation Oflts Obligations Under The Revised Plan . . . . . 46 LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Relevant Provisions Of Revised Plan ......................... . .... ... ... 52 A. LRSD's Obligation Of Good Faith ................. ... . ... .. . ..... 55 B. LRSD's Obligations Regarding Student Disciplip.e ............ : .. ... .. 55 C. LRSD's Obligations To hnprove And Remediate The Academic Achievement Of African-American Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 D. E. F. G. 11. I. LRSD's Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors ................... ; . . . 56 LRSD's Obligations To Develop Remedies, Where Appropriate, For Racial Disparities In Programs And Activities ............ , , .... , . , . . . . . . . . . 57 Procedure For Raising Compliance Jssues ............... : . .. . . . . . . . . . 57 Duration Of Revised Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 rrocc:;uure ror ;::;eeKlllg Urutary ;::;rams ............................. . Effect OfLRSD's Failure To Meet \"Specific Goals\" In The Revised Plan 59 60 Controlling Principles Of Law .......................................... 60 A. The Evolving Concept of Unitary Status . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 60 B. Applicable Standard For Determining IfLRSD Is Unitary ........ ... . .. 69 C. Burden Of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 D. Meaning Of\"Substantial Compliance\" ............................. 75 E. The Metaphysics Of Using The \"Achievement Gap\" As A Factor In Deciding Unitary Status ..... .. ... .. ..... .........................  ....... 77 -1- A072A V. Findings Of Fact .............. . ..... . .. _ ............. , .... . ........ . .. 85 A.  Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 B. Student Discipline . . .. . .................. . ... . ................. 95 C. Extracurricular Activities . . . . .... . . . ............ ; . . . . . . . . . . . . . . . 114 D. Advanced Placement Courses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Promote Participation and Remove Barriers . . . . . . . . . . . . . . . . . . . . . . . . 123 Identify and Encourage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Assist . . .................. . ... . ............ . .. .. . ; . . . . . . . . . . 135 E. Guidance And Counseling ........... . ......... : . . . . . . . . . . . . . . . . 136 F, Academic Achievement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 G. Program Assessment/Program Evaluation ................. . ........ 150 VI. Conclusions Of Law ... . .. . ........ . .. . .......... . .. . .... ... . .. ; ..... . 160 A. Unitary Status .. . ....... . . . .  .... . .......... . ..............  .... 160  B. Burden Of Proof . . . . .... . .... . ............... . ...... . ...... . .. 160 C. Substantial Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 D. Good Faith . .. .. . .. ...... . . .. . . ......... . .........  ... .. . . .. . . 161 E. Student Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 F. Academic Achievement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 G. Partial Unitary Status . .... .. . .. .... . ... . .... ~ . . . . . . . . . . . . . . . . . . 165 H. Tune To Fly .... . . . . . ......... . .... . ...... . . .. . . . . . . . . . . . . . . . 168 VII. Compliance Remedy ......... .. .. .. ........ . ..................... . '. . 170 VIll. Conclusion . .. : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 -ii- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM OPINION1 I. Introduction2 PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS On December 12, 1990, the Eighth Circuit Court of Appeals approved the \"Pulaski County School Desegregation Case Settlement Agreement,\" as revised September 28, 1989; separate Settlement Plans for the Little Rock School District (\"LRSD\"), the North Little Rock School District (''NLRSD\"), and the Pulaski County Special School District (\"PCSSD''), dated 11t was my good fortune to have The Honorable Joe Thomas Ray, U.S. Magistrate Judge, assigned to this case with me. I would be sorely remiss ifl did not acknowledge, here and now, the prodigious effort and talent he has brought to this project. As authors. are wont to say, \"any errors, however, are mine alone.\" 2As a Bryan Garner disciple (beginners' class), I generally favor putting all substantive legal analysis in the text and citing the supporting cases in footnotes. However, so many issues in this case beg for digressions that I have been unable to resist the temptation to include substantive legal analysis in some of the footnotes. A07?A .  .  . . --~ - ---- -- -- ..  ... - ........ . ... ... ~ ........ - - .. , . - - ------- ---  -  . -----------~-  ... - -  - ---- ~ - - - - . .... . . . . . ---  -  .. January 31, 1989; and a separate Interdistrict Settlement Plan.3 LRSD v. PCSSD, 921 F.2d 1371 (8th Cir. 1990). At that time, both the district court and the Eighth Circuit believed that this historic settlement created the \"benchmark for the future path of this case,\" Appeal of LRSD, 949 F.2d 253,255 (8th Cir.1991), and \"a sure guide for ending this dispute and getting the parties out of court.\" LRSDv. PCSSD, 769F. Supp. 1491, 1494 (E.D; Ark. 1991), order vacated, 949 F.2d 253 (8th Cir. 1991). In the years following the Eighth Circuit's approval of the parties' final settlement of this case, all three Pulaski County school districts implemented their respective Settlement Plans under the supervision of the district court and the Office of Desegregation Monitoring (\"ODM\"). 4 Subsequently, the district court and Eighth Circuit established guidelines for allowing the parties 3 Each of the Settlement Plans for the individual school districts contained their respective desegregation obligations. In addition, the Interdistrict Settlement Plan contained the interdistrict desegregation obligations for all three school districts. These Settlement Plans had been agreed to by the parties and approved by the Court, making them \"consent decrees.\" In their pleadings, the parties sometimes refer to these Settlement Plans as \"desegregation plans.\"  The three individual Settlement Plans for LRSD, NLRSD, and PCSSD, and the Interdistrict Settlement Plan were submitted to the district court for approval during early 1989. However, becausethey were not approved by the Eighth Circuit until December 12, 1990, LRSD v. PCSSD, 921 F .2d 1371 (8th Cir. 1990),. the parties and the district court generally have referred to these settlement documents as the 1990 Settlement Agreement, the 1990 Settl.ement Plans, and the 1990 Intei-district Settlement Plan. In contrast, the Eighth Circuit has usually referred to these settlement documents as the 1989 settlement agreement and 1989 settlement plan or plans. Appeal of LRSD, 949 F .2d 253, 254 (8th Cir. 1991) (\"We recognized, however, that the approved plans, which we shall call the 1989 plan or plans, would need some modification because of the passage of time\"). Regardless of the terminology used, the parties, the qistrict court, and the Eighth Circuit are all referring to the same settlement documents. In the interest of consistency, I will refer to those documents in this opinion as the 1990 Settlement Agreement, the 1990 Settlement Plan or Plans, and the 1990 Interdistrict Settlement Plan. \"The Eighth Circuit directed the district court to create and staff the ODM with the personnel it \"shall deem appropriate\" to help ensure compliance with all aspects of the 1990 Settlement Agreeinent and the four separate Settlement Plans. LRSD, 921 F .2d at 1388. -2- A072A to make agreed changes to the details of the Settlement Plans, as fong as they did not affect the \"major substantive commitments to desegregation\" embodied in those Plans. Appeal ofLRSD, 949 F.2d at256; see also LRSD, 769 F. Supp. 1491; LRSD v.. PCSSD, 769 F. Supp. 1483 (E.D. Ark. 1991), order vacated, 949 F.2d 253 (8th Cir. 1991). Between 1991 and 1996, LRSD worked toward implementing its desegregation obligations under the settlement documents. On May 1, 1992, the district court entered an Order ( docket no. 1587) approving certain changes to LRSD' s 1990 Settlement Plan and the Interdistrict Settlement Plan. A copy ofLRSD's modified settlement plan and interdistrict plan, referred to as \"LRSD' s May 1992 Desegregation Plan\" and the \"May 1992 Interdistrict Desegregation Plan,\" were attached to the court's May 1, 1992 Order. By 1996, it had become apparent to the parties and the district court that some of the desegregation obligations imposed on LRSD by the settlement documents might never be successfully implemented, regardless ofLRSD's best efforts .. Accordingly, on September 25, 1996, Judge Wright entered a Memorandum Opinion ( docket no. 2821) in which she \"invite[ d] the parties to modify the parts of the [ settlement] plan that are ineffective or unworkable.\" As a result, in late 1996 and 1997, LRSD and the Joshua Intervenors (\"Joshua\")5 entered into vu.1,11uu11,1.:1,17u\"T,111111u1..- ~,  _c:1 61 uu.l'u11\\ 1 .. ~ -f\\lller,.......u.puouc school children enrolled in the three Pulaski County school districts, filed a \"Petition io Intervene\" ( docket no. 452). The Petitioners sought intervenor status ''for themselves and the other Black public school children of Pulaski County through their parents and next of friends .... \" Mrs. Lorene Joshua was the lead named parent and next of friend for her three minor school children. On May 24, 1984, the Eighth Circuit entered an Order (docket no. 565) that, in effect, granted the Petition to Intervene. Thereafter, the district court and the parties began referring to these intervenors simply as \"Joshua\" Because the intervenors represent the group of all AfricanAmerican school children in the Pulaski County public schools, I will sometimes use the plural pronoun ''they'' to refer to Joshua On occasion, the Eighth Circuit has elected to consider -3- . . , . .. -\"'-  -  -    ---..,-- ......   ..   - --- - ---  .. . protracted negotiations to modify various aspects ofLRSD 's Settlement Plan. These negotiations bore fruit in the January 16, 1998 Revised Desegregation and Education Plan (the \"Revised Plan\"); which LRSD and Joshua jointly submitted to the district court for approval on January 21, 1998 ( docket nos. 31 o7 and 3136), 6 On April 10, 1998, the district court entered an Order ( docket no. 3144) approving the Revised Plan,7 which it viewed as \"an entirely new consent decree or settlement agreement between LRSD and Joshua.\"8 Unlike LRSD's 1990 Settlement Plan, as modified by the May 1992 Desegregation Plan, the Revised Plan included a section establishing a specific procedure \"Joshua\" to be only the first named intervenor, Mrs. Lorene Joshua, and properly used the singular pronoun \"she\" to refer to \"Joshua\" LRSD v. PCSSD, 56 F.3d 904, 914 (8th Cir. 1995). Either pronoun usage is correct, as long as the reader understands how the Court is  defining \"Joshua;\" 6 According to the explicit language of the Revised Plan, it \"shall supersede and extinguish all prior agreements and orders\" in this case \"and all consolidated cases related to the desegregation\" of the LRSD with the following exceptions: a . The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 (\"Settlement Agreement\"); b. The Magnet School Stipulation dated February 27, 1987; c. Order dated September 3, 1986, pertaining to the Magnet Review Committee;  d: The M-to-M Stipulation dated August 26, 1986; and, a eals int retin and enforcin sections a through d. above to the extent not inconsistent with this Revised Plan. 7buring the hearings on unitary status, the Revised Plan was introduced into evidence as ex 871. 8In its April 10 Order, the district court concluded, in the alternative, that, even if the Revised Plan was considered to be a \"modification\" ofLRSD's May 1992 Desegregation Plan, rather than \"an entirely new consent decree,\" it still should be approved under the test for seeking modification of a consent decree established by the Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992). See also LRSD v. PCSSD, 56 F.3d at 914; LRSD, 921 F.2d at 1387. -4- A072A and time schedule under which LR.SD might achieve unitary status: SECTION 11: Unitary Status. At the conclusion of the 2000'-01 school year, the district court shall eriter ail order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan. Any party challenging LRSD's compliance bears the burden of proof If no party challenges LRSD 's compliance, the above-described order shall be entered without farther proceedings. (Emphasis added.) Because none of the parties appealed the district court's April 10 Order approving the Revised Plan, it became a final consent decree, which now governs LRSD's desegregation obligations and establishes the path tha~ LRSD must follow to achieve unitary status and release from federal court supervision.9 On March 15, 2001, LR.SD filed a Request for Scheduling Order and Compliance Report 91n most school desegregation cases, a federal court's jurisdiction depends on the existence of constitutional violations by the school district Once the school district complies with all of its obligations under the Constitution, it achieves \"unitary status,\" and the federal court's jurisdiction ends. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16 (1971). .   1 .   In Green v. County School Bd. of New Kent County, 391 U.S. 430, 4~5-38 (1968), the Court identified the following areas of a school district's operations that must be carefully exannncu m oetemnnmg wnemer 1t.nas successtu.lly converteo .. to a unnary system m whlch racial discrimination [has been] eliminated root and branch\": ( 1) student assignment; (2) faculty and staff assignment; (3) transportation; (4) extracurricular activities; and (5) facilities . . These so-called Green factors establish the floor for a school district's compliance with its constitutional obligations under the Fourteenth Amendment. Thus, in all school desegregation cases, a school district's compliance with the Green factors is a condition precedent to unitary status. Importantly, the Revised Plan required LRSD to comply with not only the Green factors, but also a host of other desegregation obligations that went well beyond the constitutional floor established by the Court in Green. Thus, in this case, the question of unitary status turns on whether LRSD has substantially complied with its desegregation obligations under the Revised Plan. -5- A072A ( docket no. 3410), 10 pursuant to Section 11 of the Revised Plan, seeking \"an order finding LRSD unitary with regard to all aspects of school operations.\" On June 25, 2001, Joshua filed an Opposition to LRSD's Compliance Report (docket no. 3447), which vigorously challenged LRSD's contention that it was entitled to a declaration of unitary status and argued that LRSD was not in \"substantial complian?e\" with certain of its desegregation obligations under the Revised Plan. On July 5 and 6, August 1 and 2, and November 19 and 20, 2001, my colleague and predecessor in this case,United States CbiefDistrict Judge Susan Webber Wright, conducted five and one-half days of evidentiary hearings to develop the facts surrounding what Joshua believed were their three strongest grounds11 for challenging LRSD's request for unitary status: first, that LRSD had not acted in good faith in implementing its desegregation obligations( 2.1 of the Revised Plan); second, that LRSD was not in substantial compliance with its obligations regarding student discipline (  2.5 through 2.5 .4 of the Revised Plan); and third, that LRSD was not in substantial compliance with its obligations to implement programs, policies, and procedures designed to improve the academic achievement of African-American students ( 2.7, 2.7.1, and 5.1-5.8 of the Revised Plan). In a scheduling conference on December 11, 2001, Judge Wright desi~ated the week of , . January 28, 2002, to hear no more than five additional days of testimony regarding the last three 10During the hearings on unitary status, the Final March 15, 200 l Compliance Report was introduced into evidence as CX 870. 111n a telephone conference with counsel on June 29, 2001; Judge Wright made it clear that counsel for Joshua should present his strongest arguments and evidence first, followed by subsidiary arguments and evidence (docket no. 3461 at 54-55). -6- areas of the Revised Plan in which Joshua claimed LRSD had :failed to substantially comply with its obligations: advanced placement courses ( 2.6 and 2.6.2 of the Revised Plan); extracurricular activities( 2.6 and 2.6.3 of the Revised Plan); ~d guidance counseling (.2.6.1 of the Revised Plan) ( docket no. 3597 at 31-37).12 Judge Wright made it clear tha~ after she had heard the testimony concerning these last three areas of LRSD's alleged noncompliance, she  would decide the question of unitary status. Id. at 36-37. On January 3, 2002, after presiding over this case with great perseverance and distinction for eleven years, 13 Judge Wright determined that it was the \"appropriate tiine to reassign this case to another judge with minimal disruption to the parties and to allow a smooth transition\" ( docket no. 3569). That same day, the case was assigned to me by random selection ( docket no. 3570).14 On March 15, 2002, one year to the day after submitting its Request for Scheduling Order and Compliance Report, LRSD filed a Motion for an Immediate Declaration of Unitary Status 12Judge Wright also ruled that Joshua could present non-curi:mlative evidence regarding: (a) LRSD's lack of good faith in implementing its obligations regarding. advanced placement courses, extracurricular activities, and guidance counseling; and (b) the ways in which LRSD's failure to substantially comply with its obligations regarding advanced placement courses and guidance counseling adversely impacted the academic achievement of African-American students . . 13JnLRSD v. NLRSD, 148 F .3d 956,967 (8th Cir.1998), the Court recognized the expertise Judge Wright had gained during her many years of service in this case: In reaching this conclusion, we are mindful that Judge Wright has been responsible for administering and interpreting the settlement agreement for some time now, ever since 1990, when she took over this case. Our review of the District Court's interpretation of the settlement agreement is, as a formal matter, de novo. But we still think it appropriate to pay some heed to the reasoned determinations of the experienced District Judge, who faces decisions in this case every month, if not every week. 14Of course, the five days of evidentiary hearings that Judge Wright had scheduled for the week of January 28, 2002, were cancelled. -7- (docket no. 3580) and Supporting Memorandum Brief_(docket no. 3581). On May 9, 2002, I entered a fourteen-page Order ( docket no. 3598) explaining to the parties my understanding of the current status of the case. Because the passing of the baton is a key factor in any relay race, the May 9 Order noted: Judge Wright, my immediate predecessor in this case, has done an outstandingjob of narrowing the issues and establishing a schedule that should allow nie to conduct no more than five additional days of evidentiary hearings on the four remaining issues and then be in a position to decide the LRSD's Motion for an Immediate Declaration of Unitary Status. For that reason, the Court intends to pick up where Judge Wright left off, without disturbing the schedule that was established and agreed to by the parties and the Court during the December 11, 2001 hearing. May 9, 2002 Order at 12 (docket no. 3598) (footnote omitted). In a telephone conference with counsel on May 14, 2002, I rescheduled for July 22-26, 2002, the last five days of evidentiary hearings on the question of whether LRSD had substantially complied with its obligations under the Revised Plan . . In an Order (docket no. 3600) entered the next day, I set forth the schedule adopted during the May 14 telephone conference. On May 30, 2002, Joshua filed their Response in Opposition-to LRSD's Motion for an hnmediate Declaration ofUnitary Status ( docket no. 3604). On June 7, 2002, LRSD filed a Reply i Brief in Support of Motion for an Immediate Declaration of Unitary Status ( do.cket no. 3607). relevant to the determination of whether LRSD is entitled to a declaration of unitary status. Thus, the record is now complete, and the issue of unitary status is ready for decision. During the last eight months, I have spent many an hour trying to educate myself on the significant rulings and agreements that have shaped the current contours of this twenty-year-old -8-  A072A case.15 I have also read a ground-slide load of cases to gain an understanding of the evolution of school desegregation litigation during the last five decades and to grasp the issues a court must resolve in deciding whether a . school district has achieved unitary status. I have learned that desegregation cases are invariably complex, involve difficult-to-understand jargon, and frequently generate book-length appellate decisions, with seemingly obligatory concurring and dissenting opinions. Of course, I have found none of these discoveries to be surprising. After all, the issue of desegregation goes to both the heart of the Fourteenth Amendment's promise of \"equal protection\" and the dark soul of what was, in many parts of the country in the I 950's, a de jure segregated public school system that only grudgingly gave ground to integration-after most school districts had exhausted all available means of delay. In 1954, the Supreme Court rendered its landmark decision in Brown v. Board of Education, 347 U.S. 483, 495 (I 954) (\"Brown I\"), holding that \"in the field of public education the doctrine of 'separate but equal' has no place\" and that segregation of public education is a denial of\"equal protection of the laws.\"16 Three years later, Little Rock suddenly found itself at the epicenter of this country's first major school desegregation effort. In early August  of 1957, LRSD school officials (including the school board) were prepared to implement a plan to admit a small number of African-American students to Central High School. Arkansas's Governor, Orval Faubus, ostensibly supported that plan, which, if 15This action was filed on November 30, 1982, as the last in a long line of desegregation cases, dating back to 1956. See infra, note 18. The pleadings in this case alone now occupy hundreds of feet of file space in the Clerk's office. 16The next year; the Court explicitly directed the lower federal courts to accomplish desegregation ''with all deliberate speed.\" Brown v. Board of Education, 349 U.S. 294, 301 (1955) (\"Brown II\"). -9- _ A072A ' . . .. .. ~ . implemented with the support of the State, may well have led to the peaceful integration of Central. As it turned out, however, just as school started, Faubus called out the Arkansas National Guard to prevent the \"Little'Rock Nine\" :froin entering Central. 17 Faubus, who was known as somewhat of a moderate up to that time, shamelessly fanned  the flames of racism under the rubric of \"state' s rights,\" \"interposition,\" and the like. Thus, Little Rock became the first great legal .battleground in the long struggle to desegregate this country's public school system, a distinction that has left lasting wounds in this community. One can only wonder how the history of school desegregation might have been different if the first southern governor to squarely face the dictates of Brown I had done his plain, sworn constitutional duty. In view of the historical importance of this case, I believe I should review the long and winding path trod by LRSD in carrying out its constitutional duty, under Brown I and its progeny, to rid the Little Rock school system, to the extent practicable, of the vestiges of de jure segregation. Withoutatleast some understanding of that history, it is impossible to appreciate the deep passions this case still. stirs iii the litigants, lawyers, and judges who have been involved in almost five decades of continuous, unremitting school desegregation litigation in Pulaski County.18 17Faubus, of course, cited public safety concerns as bis reason for mobilizing the National Guard. He claimed \"secret intelligence reports\" indicated that dangerous outside agitators were at work in Little Rock, but these reports were never substantiated. In fact, the evidence now available suggests that the white mob which confronted the \"Little Rock Nine\" was mobilized by Faubus' own demagoguery, rather than by unidentified \"outside agitators.\" And, of course, other demagogues of a like mind were quick to pitch in. R. Reed, Faubus: The Life And Times Of An American Prodigal (1997). 18Jn 1956, the plaintiffs inAaron v. Cooper, 143 F. Supp. 855 (E.D. Ark.1956), filed suit against LRSD to force it to desegregate pursuant to the Court's holding in Brown I. In 1964, the plaintiffs filed Clark v. Board of Educ. of LRSD as a continuation of the desegregation action -10-   .  . . _ ..... - .,: ' - - - - . -  .. 1- ..   ., ... ... ,_ .. . .. --. ... ; .  ~ . . ....  - .... -  . .. '   A. II. The Long History Of Desegregation Litigation In Pulaski County 1956 Through 1973 mLRSDv. PCSSD, 584F. Supp. 328, 331-32 (E.D. Ark. 1984), the late and distinguished United States District Judge Henry Woods, the first judge to preside over this case, chronicled  in great detail the history of desegregation in Pulaski County. m bis scholarly decision, Judge Woods descnbed: the operation of LRSD m 1930, when it was a dejure segregated school district operating under the \"separate but equal\" doctrine;19 the Court's decision in Brown I, which overturned Plessy v. Ferguson; the court-ordered implementation of a plan to admit a small number of African-American students to Little Rock Central High School in September of1957;20 Governor Faubus' use of Arkansas National Guard troops at Central to place it \"off limits\" to African-American students and the subsequent removal of those troops after the issuance of an injunction by United States District Judge Ronald Davies in Aaron v. Cooper, 156 F. Supp. 220 commenced against LRSD in Aaron v. Cooper. See Judge William Overton's July 9, 1982 Memorandum and Order in Clark, a copy of which, marked Exhibit 1, is attached to LRSD's Memorandum Brief in Support ofMotion for an Immediate Declaration ofUnitary Status (docket no. 3581 ). On Noveinber 30, 1982, LRSD initiated this action against the PCS SD, NLRSD, and thP ,\\ -1 Roard nfPnnr\u0026lt;itinn ., .... v;no the consolidation of all three school districts in Pulaski County as the appropriate interdistrict desegregation remedy.  Thus, LRSD has been involved continually in federal desegregation litigation for forty-six years. 19Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown I, 347 U.S. 483 (1954). 20See Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956). As discussed supra at note 18, Aaron was filed in 1956 to force LRSD to desegregate pursuant to the Court's holding in Brown. United States District Judge John E. Miller entered a decree on August 27, 1956, approving LRSD's plan of gradual school integration beginning with senior high school classes in the fall term of 1957. The Eighth Circuit subsequently affirmed that decision. Aaron v. Cooper, 243 F .2d 361 (8th Cir. 1957). -11- AQ_7~_ (E.D. Ark. 1957);21 the nine courageous African-American students entering Central on September 23, 1957, in the face of a large, threatening mob of whites; and, finally, President Eisenhower dispatching troops to Central to ensure the safety of the African-American students and to enforce Judge Davies' desegregation order.22 Judge Woods also traced desegregation plans advanced by LRSD in \"the decade of 1960 in a good faith effort to provide a solution to continuous litigation\" and the failure of those plans m \"the hysterical political atmosphere of that period.\" LRSD, 584 F. Supp. at 334. In 1966, the Eighth Circuit approved LRSD.'s \"freedom of choice\" desegregation pl~, which remained in effect through the 1968-69 school year. Clarkv. Board of Education ofLRSD, 369 F.2d 661 (8th Cir. 1966). Significantly, in its decision, the Court noted LRSD's good faith commitment to desegregation: Many of the problems encountered are not of the Board's making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system._ 21In 1957, the Eighth Circuit assignedJudge Davies, of Fargo, North Dakota, to preside over Aaron. On September 21, 1957, Judge Davies issued an injunction ordering Governor au us, e ~utant ener o e tate o ansas, an 1eutenant_ o one anon . Johnson of the Arkansas National Guard, and their officers, agents, and employees to cease and desist \"obstructing or preventing, by means of the Arkansas National Guard, or otherwise, Negro students, eligible under said plan of school integration to attend the Little Ro~k Central High School, from attending said school .... \" Aaron v. Cooper, 156 F. Supp. at 222. See also Cooper v. Aaron, 358 U.S. 1, 9-10 (1958). 22Scenes of angry mobs of white protesters confronting the nine African-American students as they entered Central and, later, troops of the 101 st Airborne Division rolling across the Broadway Bridge to restore order in Little Rock are still deeply etched in the minds of many Arkansans. -12- l A072A Id. at 666.23 In Green v. County School Board ofNe',11 Kerit County, 391 U.S. 430, 439-40 (1968), the . . Court held that school districts such as LRSD, which were the product ofde jure segregation, could not satisfy their constitutional obligations under \"freedom of choice\" plans. Therefore, LRSD formulated a new desegregation plan for the 1969-70 school year that was based on geographic attendance zones. However', because segregated housing patterns created a number of racially identifiable schools under the plan, the Eighth Circuit found it to be unconstitutional. Clarkv. Board of Education ofLRSD, 426 F.2d 1035, 1043 (8th Cir. 1970). In the 1971-72 school year, LRSD began crosstown busing to achieve racial balance in grades 6 through 12. Clarkv. Board of Directors ofLRSD, 328 F. Supp. 1205, 1209, 1214 (E.D. Ark. 1971, rev'd in part, 449 F.2d 493 (8th Cir. 1971). The following school year, crosstown busing was used to achieve racial balance in grades 4 and 5. Clark v. Board of Education of LRSD, 465 F.2d 1044, 1046 (8th Cir .. 1972). Finally, during the 1972-73 school year, all LRSD schools and all LRSD grade levels were racially balanced. B. Events Leading To Initiation Of This Action On July 9, 1982, United States District Judge WiUiam R. Overton entered a Memorandum and Order in Clark which contained many of the findings that underpinned LRSD's subsequent 23Likewise, in Cooper, 358 U.S. at 9, the Supreme Court acknowledged that LRSD was prepared to implement the plan, approved by Judge Miller in Aaron, 156 F. Supp. 220, to gradually integrate senior high school classes in the fall term of 1957. However, LRSD was prevented from following that plan by the flagrantly unlawful actions of Governor Faubus, which the Supreme Court noted \"had not been requested by the school authorities, and [were] entirely unheralded.\" Cooper, 358 U.S. at 9. -13- A072A decision to file this action.24 In many respects, Judge Overton's decision was a ringing endorsement of LRSD for successfully implementing its school desegregation plan over the last nine years. For example, Judge Overton explicitly found: (1) \"no evidence of vestiges of discrimination in the district policies or practices\"; (2) ''the district has done an admirable job in the task of desegregation\"; and (3) \"the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system and isolated complaints of discrimination without persuasive specific evidence to the contrary do not detract from that record.\" July 9, 1982 Memorandum and Order at 16 (docket no. 3581) ( emphasis added). 25 Although Judge Overton found that LRSD was operating \"as a completely unitary desegregated school system,\" he made a number of findings that raised serious questions about the future prospects for LRSD remaining an integrated school district. For' example, Judge Overton found that: ( 1) in the years after the desegregation ofLRSD elementary schools in 1973- 7 4, \"there has been a steady trend ofincreasing black enrollment and decreasing white enrollment 24As indicated previously, a copy of Judge Overton's July 9, 1982 Memorandum and Order is attached as Exhibit 1 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). 25Eleven years later, Judge Wright, in describing the operation of LRSD in the years before it filed this action, observed that many believed desegregation litigation in the LRSD \"[had] been brought to a successful conclusion and the Little Rock school system seemed to have entered a period of relative tranquility and complete self-management.\" See Judge Wright's Statement to LRSD Board of Directors and Counsel on March 19, 1993, attached as Exhibit 1 to Joshua's August l, 1996 Memorandum in Opposition to LRSD's Motion to End Federal Court Jurisdiction ( docket no. 2730). -14- A072A ~-- in the elementary schools ... and [to a lesser extent] in the upper grades\";26 (2) despite LRSD's efforts to modify student assignment plans to correct the growing disparity in the black-white student ratio in elementary schools,\"[ a ]11 of the persuasive evidence indicates the school district will have enrollment which is essentially all black, particularly in the elementary grades, within the next few years\"; and (3) by the fall of 1981, LRSD faced a host of problems surrounding the school attendance plan, including a \"significant disparity in the black-white ratio at the various elementary schools,\" complaints ofblack parents \"that their children were being bused across the city to attend all black classes,\" and the defeat of \"the last two millage increase proposals ... by the electorate ... [ creating] severe financial problems and an eroding financial base.\" July 9, 1982 Memorandum and Order at 1-6, attached as Exhibit 1 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). In an effort to retain and supplement the shrinking pool of white students, Judge Overton approved the Partial K-6 Plan,27 which created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and grades 4-6 at another. Eight of the twelve neighborhood schools were racially balanced, and four were virtually all black. Under the plan, 26In the fall of 1971, 42% of the students in LRSD were black. In each year from 1971 through 1981, the number of black students increased, while the number of white students decreased. In the fall of 1981, 76% of elementary students and 55% ofhigh school students were black. See LRSD, 584 F. Supp. at 335. In the December 16, 1981 Report prepared by the Desegregation Assistance Team from Stephen F. Austin University, the authors concluded that, if existing trends continued, 90% of the students entering the first grade in LRSD in the fall of 1989 would be black. See Stephen F. Austin Report at 19, attached as Exhibit 2 to LRSD's Memorandum Briefin Support ofMotion for an Immediate Declaration ofUnitary Status ( docket no. 3581). 27This was a shorthand reference for LRSD's desegregation plan for children attending kindergarten through the sixth grade. -15- A072A Booker Junior High School became an intermediate school; a magnet school was to be created west ofUniversity Avenue; and a committee was appointed to ensure that the four virtually all black schools would be treated equally. See July 9, 1982 Memorandum and Order at 6-11.28 Finally, Judge Overton noted that LRSD had taken a number of steps to address the problems that confronted it. First, LRSD had commissioned a study and report by a ' \"Desegregation Assistance Team\" at Stephen F. Austin University on its desegregation efforts and the challenges it faced in the future.29 Second, LRSD had begun investigating \"the possibility of seeking an interdistrict remedy through legal proceedings against the adjacent County School District and [had] hired a law firm to pursue that remedy.\" See July 9, 1982 Memorandum and Order at 6. C. Interdistrict Litigation And Interdistrict Relief On November 30, 1982, LRSD filed this action-a new case30--against PCSSD, NLRSD, the State of Arkansas, and the Arkansas Department ofEducation (\"ADE\") seeking consolidation of the three Pulaski County School Districts as the most appropriate and effective desegregation remedy for all three school districts. In its Complaint ( docket no. 10), LRSD alleged that PCS SD 28Judge Overton's July 9 decision approved LRSD's Partial K-:6 plan as a \"stop gap\" student assignment plan for elementary grades. The Eighth Circuit later affirmed that decision in Clarkv. Board of Educ. of LRSD, 705 F.2d 265 (8th Cir. 1983). 29 As indicated, supra at note 26, this report, entitled \"Building on a Generation of Accomplishment Maintaining and Strengthening Desegregation in Little Rock\" (hereinafter referred to as the \"Austin Report\"), is attached as Exhibit 2 to LRSD's Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). 3Because this action involved claims for relief and remedies that were different from those involved in Clark, it was considered to be a new case and was randomly assigned to the Honorable Henry Woods. -16- A072A and NLRSD engaged in \"a series of intradistrict constitutional violations with interdistrict effects\" and that the State of Arkansas and Arkansas Department of Education (hereinafter referred to collectively as the \"State/ADE\"), through funding and other state action, \"operated, maintained and/or condoned a racially segregated structure of public education under color of state law.\" After conducting a trial on the merits of the claims asserted in LRSD's Complaint, Judge Woods entered a Memorandum Opinion setting forth detailed findings of fact and conclusions oflaw to support his detennination that each of the three Defendants had violated the Constitution by creating \"racial isolation between and among the districts\" that had caused six specific \"interdistrict effects.\" LRSD, 584 F. Supp. at 349-51.31 Judge Woods noted that, at a later date, he would conduct a hearing to take evidence regarding the precise nature of the remedy that should be fashioned to cure the interdistrict effects of \"substantial interdistrict segregation.\" Id. at 352-53. During the subsequent remedial hearings, PCSSD advanced a plan that retained the three autonomous school districts and relied on the development of specialty or magnet schools to attract students from one district to another. LRSD v. PCSSD, 597 F. Supp. 1220, 1222-23 (E.D. Ark. 1984). NLRSD advanced a plan that retained the three autonomous school districts, transferred certain geographic areas from PCSSD to LRSD and from LRSD to PCSSD, and depended heavily on the use of majority to minority transfers (\"M to M transfers\") to achieve racial balance. Id. at 1223. Although not advancing a specific plan, Joshua used testimony from 31 Judge Woods made 105 specific findings of fact and drew 14 conclusions oflaw to support his determination of the issue of liability. On appeal, the Eighth Circuit affirmed all of those findings of fact and conclusions oflaw. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8th Cir. 1985). -17- i! A072A ,c--o,a,,, two expert witnesses to suggest three options: (1) altering boundary lines in accordance with the NLRSD plan; (2) altering boundary lines to transfer other geographic areas among all three districts; or (3) transferring certain geographic areas to LRSD and having all of the remaining area of PCSSD consolidated with NLRSD. Id. at 1223-24. LRSD advanced a plan that involved the county-wide consolidation of all three school districts. Id. at 1224-25. After considering all of the evidence, Judge Woods concluded that \"a countywide interdistrict remedy must be utilized to correct the countywide interdistrict violation found to exist and that this is the only manner of placing the victims of this discrimination in the position they would have occupied absent the discrimination.\" Id. at 1225. 32 Judge Woods also concluded that the State/ ADE: (a) failed to discharge its affirmative duty to encourage desegregation, which had an interdistrict effect on LRSD, PCS SD, and NLRSD; and (b) had \"remedial responsibilities with respect to this case.\" Judge Woods noted that the \"precise nature of [the State/ADE's] financial and oversight responsibilities must await further refinement of the consolidation plan and development of a budget for such consolidated district.\" Id. at 1228. PCSSD, NLRSD, and the State/ADE appealed Judge Woods' decisions inLRSD, 584 F. Supp. 328, and LRSD, 597 F. Supp. 1220. The Eighth Circuit, sitting en bane, affirmed Judge Woods' finding on liability for interdistrict constitutional violations by PCSSD,'NLRSD, and the State/ ADE, but reversed his remedy of consolidation33 on the ground that, while the interdistrict violations of the Constitution called for an interdistrict remedy, consolidation of the three school 32Tous, the cat had been belled--for the time being. 33Toe cat was not long belled. -18- A0 7 ?A districts was not required. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8th Cir. 1985).34 Rather than remanding the case to the district court for further findings and a detailed remedial decree, the Court spelled out its own interdistrictremedy.35 Id. at 434-36. Although this interdistrict remedy allowed LRSD, NLRSD, and PCSSD to remain autonomous, it called for, among other things: changing boundaries between PCS SD and LRSD; revising attendance zones so that each school would reasonably reflect the racial composition of its district within a permitted variance of plus or minus 25% of the minority race; encouraging intradistrict and interdistrict M to M transfers; and creating a limited number of magnet or specialty schools. Id. at 435-36. The principles of the interdistrict remedy outlined in the majority opinion later became the basis for the desegregation plans that were implemented in each of the three Pulaski County school districts. LRSD proceeded to develop a \"controlled choice\" desegregation plan, which was approved by Judge Woods on February 27, 1987 (docket no. 739). Under this plan, LRSD was divided into two attendance zones of approximately equal racial balance. Students were assigned to schools so that each grade at each school reflected the racial balance within that attendance 34Judge Woods later wrote an article in the Arkansas Law Review critiquing the Eighth Circuit's decision. Judge Henry Woods and Beth Deere, Reflections on the Little Rock School Case, 44 Ark. L. Rev. 971 (1991). 35In a separate opinion, Judge Richard S. Arnold made the following observation about the remedy fashioned by the majority: The District Court (though we are today disagreeing with some ofits conclusions) is presided over by a scholarly and distinguished judge. That court, not this one, is in the best position to write a decree. Instead, a decree today springs full-grown from the brow of this Court, a decree that will, I dare say, startle all the parties to this case, including even those (if there are any) who like what they see. LRSD, 778 F.2d at 437 (Arnold, J., concurring in part and dissenting in part). -19- l\\07?A zone. After a student was assigned to a school, the student's parents could request reassignment to another school within their attendance zone. That request would be granted so long as each school would remain within a range of plus or minus 12.5% of the black student population at the school. The plan also provided for eight magnet schools (four elementary, two junior high, and two high schools), with seats reserved for students of each of the three Pulaski County school districts. The target racial composition of the magnet schools was 50%-50%. Finally, the plan established a Magnet Review Committee, with representatives of each of the three districts, along with a non-voting member representing Joshua and the Knight Intervenors.36 The controlled choice plan was implemented beginning with the 1987-88 school year (docket no. 670). While the controlled choice plan was intended to create racial balance, it resulted in many central and east Little Rock schools having fewer than fifty white students. For that reason and others, Judge Woods later found the plan to be \"ill-conceived.\" LRSD v. PCSSD, 716 F. Supp. 1162, 1188 (E.D. Ark. 1989), rev'd., 921 F.2d 1371 (1990). LRSD submitted a new desegregation plan for the 1988-89 school year, which all parties agreed would be a \"stabilizing year'' to allow LRSD to carefully plan for the 1989-90 school year and beyond. Id. With that understanding, Judge Woods approved LRSD's proposed desegregation plan for the 1988-89 school year. Id. D. The 1990 Settlement Agreement And Settlement Plans After long and difficult negotiations that began in 1988, LRSD, PCSSD, NLRSD, Joshua, and the State/ADE agreed to a global settlement of all aspects of this case. In the spring of 1989, 36The Knight Intervenors are members of the LRSD Classroom Teachers Association. -20- ii A072A the parties submitted the following final settlement documents37 to Judge Woods: (a) The Pulaski County School Desegregation Case Settlement Agreement,38 which, among other things, fixed the State/ADE's total financial liability to the three school districts to be an amount \"not to exceed $129, 750,000\";39 and (b) separate comprehensive \"Settlement Plans\" for LRSD, NLRSD, and PCSSD and a comprehensive \"lnterdistrict Settlement Plan.'\"'0 Judge Woods rejected each of the four separate Settlement Plans41 and the 1990 Settlement Agreement,42 as submitted; 31See footnote 3, supra, for an explanation of the terminology I will use in referring to these settlement documents. 38A copy of the 1990 Settlement Agreement is attached to LRSD's and Joshua's \"Joint Motion\" seeking approval of that agreement (docket no. 1174). 39The 1990 Settlement Agreement contained detailed prov1s1ons governing the State/ADE's role in funding and implementing the separate LRSD, NLRSD, PCSSD, and Interdistrict Settlement Plans. Among other things, the State agreed to pay the three school districts a total of not more than $129,750,000. All of the parties agreed to release all claims against each other and to dismiss this case, with prejudice, as to each party. 40 As indicated previously, these four Settlement Plans contained the detailed desegregation obligations that LRSD, PCS SD, and NLRSD contractually agreed to implement under the district court's supervision. See footnote 3, supra. 41 Judge Woods refused to approve the Settlement Plans because he believed they were \"facially unconstitutional\" and outside the mandate of the Eighth Circuit: In LRSD 's proposed plan almost one-fourth of the elementary schools are contemplated to be all black. The entire mandatory busing burden at the elementary level for desegregation purposes falls on black children. . . . All of the historically \"black\" schools lie east ofUniversity A venue, and all are proposed to be all-black incentive schools. Double funding is promised for the all-black schools. Yet it is impossible to determine from the submissions how the funds will be spent. LRSD, 716 F. Supp. at 1169. 42Judge Woods refused to approve the 1990 Settlement Agreement because it was \"contingent upon legislative approval and a legislative appropriation to fund it. I cannot in good conscience accept this bill as having passed.\" LRSD, 716 F. Supp. at 1 164. -21- ~-0 72A ordered the parties to implement a more comprehensive plan known as the Tri-District Plan; appointed Eugene Reville to the position of Metropolitan Supervisor; and conferred upon Mr. Reville a wide array of powers over all three school districts that, in many respects, closely resembled consolidation--the remedy the Eighth Circuit had previously rejected. LRSD, 716 F. Supp. at 1164-69. Shortly after Judge Woods entered his decision, the Arkansas Legislature passed a bill funding the over $100,000,000 that the State/ADE was obligated to pay to the three school districts under the 1990 Settlement Agreement. Based on this new development, the parties resubmitted the Settlement Agreement to Judge Woods for approval. On December 11, 1989, Judge Woods entered an Order which added certain new conditions to the Settlement Agreement; approved it, as modified; and directed the parties to carry out its terms. LRSD v. PCSSD, 726 F. Supp. 1544, 1549-51 (E.D. Ark. 1989). Judge Woods' December 11 Order also specifically disapproved that portion of the Settlement Agreement which called for LRSD to pay $2,000,000 of the $3,150,000 in attorneys' fees that the parties had agreed to pay to Joshua's counsel. Id. at 1554-56.43 Each of the school districts and Joshua appealed the district court's decisions to the Eighth Circuit, which reversed and remanded the case with instructions to approve the 1990 Settlement Agreement and the four Settlement Plans, as submitted by the parties. LRSD, 921 F.2d 1371. In reaching that decision, the Court made a number of important rulings that have had a profound 43Under the terms of the 1990 Settlement Agreement, Joshua's counsel was to be paid attorneys' fees of $3,150,000, which the parties agreed should be allocated as follows: LRSD: $2,000,000; the State/ADE: $750,000; PCSSD: $300,000; and NLRSD: $100,000. LRSD, 921 F.2d at 1390. -22- influence on future developments in the case. First, the Court noted that the appeal arose from settlements agreed to by all the parties (a \"most important fact\") and that \"[t]he law strongly favors settlements\" which should be \"hospitably'' received: This may be especially true in the present context--a protracted, highly divisive, even bitter litigation, any lasting solution to which necessarily depends on the good faith and cooperation of all the parties, especially the defendants. Id. at 1383. As further support for that conclusion, the Court made the following observation: This is, after all, no ordinary litigation. The NAACP Legal Defense and Educational Fund, its lawyers and its predecessors, have vigorously prosecuted this case and its ancestors for more than 30 years. Absent an extremely good reason--and we have been given none--we are reluctant to disregard their judgment as to what is best for their own clients. Id. at 1386. Second, the Court explicitly recognized theimportantroleof futuremonitoringin the case and the need for it to continue \"for a long time\": \"In the present case, for example, any remedy will necessarily require some judicial supervision--monitoring, at least--for a long time.\" Id. at 13 83 ( emphasis added). The Court also emphasized the importance of the district court ensuring that \"the settlement plans [are] scrupulously adhered to,\" that monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments.\" Id. at 1386. Third, the Court recognized that \"a necessary condition of our holding that the plans are not facially unconstitutional is that the parties' compliance with them will be carefully monitored.\" Id. at 1388. Therefore, the Court directed the creation of the ODM ''to be headed by a Monitor appointed by the District Court, with such additional personnel as the District Court shall deem appropriate.\" Id. -23- A07.2A_ Finally, the Court reversed Judge Woods' decision on attorneys ' fees and awarded counsel for Joshua $3,150,000, the full amount of attorneys' fees provided for under the Settlement Agreement. These attorneys' fees were allocated and payable among the parties as follows: LRSD ($2,000,000);44 State/ ADE ($750,000); PCS SD ($300,000); and NLRSD ($100,000). Id. at 1390. In an Order entered July 6, 1990, Judge Woods concluded that, because he was \"unable to successfully implement a plan to bring equity to the children of this county under the restrictions imposed by the Court of Appeals,\" the time had come \"for another judge to assume the burden of this litigation since it is my unalterable decision to recuse.\" LRSD v. PCSSD, 740 F. Supp. 632, 636 (E.D. Ark. 1990). Later that day, the case was reassigned, by random selection, to the Honorable Susan Webber Wright (docket no. 1373). E. LRSD's Implementation Oflts Desegregation Obligations Between 1991 And 1995 Section IV of the Settlement Agreement explicitly provided that the State/ADE \"conditions this settlement upon its dismissal from this Litigation with prejudice in accordance with the terms of Attachment A.\" Attachment A was a \"Release of All Claims Against the State,\" pursuant to which all parties to this litigation released all claims they might have against the State/ ADE relating \"to racial discrimination or segregation in public education in the three school districts in Pulaski County, Arkansas or to the violation of constitutional or other rights of school children based on race or color in the three school districts in Pulaski County, Arkansas.\" Attachments B, C, and D were identical releases that ran in favor of LRSD, PCSSD, and \"\"The State/ADE agreed to advance LRSD's share of these attorneys' fees, which were to be deducted from payments the State/ADE owed LRSD under Section VI of the Settlement Agreement. LRSD, 921 F.2d at 1390. -24- A072A /gp-'L8Ja2}__ NLRSD. Finally, Attachments A, B, C, and D each contained the same language providing that this action (LR-C-82-866) \"is to be dismissed with prejudice\" as to the State/ ADE, LRSD, PCSSD, and NLRSD. Thus, the Settlement Agreement expressly provided for the dismissal of this case, with prejudice, \"except that the Court may retain jurisdiction to address issues regarding implementation of the Plans. \" Attachments A, B, C, and D to the Settlement Agreement (docket no. 1174) (emphasis added). On the date the Eighth Circuit entered its decision approving the 1990 Settlement Agreement and Settlement Plans, only the State/ ADE had moved to be dismissed, with prejudice, as a party to this action.45 Thus, one of Judge Wright's first rulings in this case was a January 18, 1991 Order that: (1) dismissed the State/ADE as a party to this action \"pursuant to the terms of the parties' settlement agreement\"; and (2) converted the Office of Metropolitan Supervisor to the ODM, which she \"vested with the authority to monitor the school districts' compliance with the settlement plans and settlement agreement, including any future modification of, or addition to, such plans and agreements\" ( docket no. 1418). Ann Marshall, Anna Hart, Polly Ramer, and Linda Bryant, all of whom previously worked for Mr. Reville in the Office of Metropolitan Supervisor, were allowed to \"continue in their present positions subject to the later approval of 45ln its December 12, 1990 decision approving the 1990 Settlement Agreement and four separate Settlement Plans, the Eighth Circuit directed the district court to \"enter a fresh order dismissing the State as a party pursuant to the terms of the parties' settlement agreement.\" LRSD, 921 F .2d at 1394. Under the explicit language of the Settlement Agreement, LRSD, PCSSD, and NLRSD were each entitled to the entry of a similar order dismissing them, with prejudice, as parties to this action. Forreasons that are not apparent from a review of the record, LRSD waited until November 30, 1995, to move for an order dismissing this case with prejudice (docket no. 2573). See discussion infra at pp. 31-32. On January 26, 1998, Judge Wright entered an Order ( docket no. 3109) pursuant to which LRSD was dismissed, with prejudice, as a party to this action and the case was administratively terminated ( docket no. 3110). -25- An\"'\"\" the court-appointed monitor.\" In a Memorandum Opinion entered February 28, 1991 ( docket no. 1442), the district court made it clear that, even though the State had now been dismissed as a party, it remained obligated to comply with its settlement obligations, which \"when understood in conjunction with the language in both the Eighth Circuit's order of December 12, 1990, and this Court's order of January 18, 1991, also obligate the State to continue funding the ODM\" by making the annual contribution of $200,000 required in Judge Woods' June 27, 1989 Order.46 Likewise, LRSD, NLRSD, and PCSSD were required to continue their annual funding of the ODM on a per pupil pro-rated basis. On April 5, 1991, Judge Wright entered a Memorandum and Order(docket no. 1459) that appointed Ms. Ann Marshall Desegregation Monitor, at an annual salary of$98,000.47 46In an Order entered August 18, 1993 ( docket no. 194 7), Judge Wright emphasized that, while the State/ ADE was no longer a formal party in this action, \"it is the law of the case that the Court retains jurisdiction to ensure that the parties, including the State, comply with the terms of the settlement agreement as well as the settlement plans.\" In an Order entered December 10, I 993 ( docket no. 2045), Judge Wright held that the State agreed not only to the obligations contained in the 1990 Settlement Agreement, but also to the obligations contained in.the May 31, 1989 letter from its counsel, H. William Allen, which is referred to in Secti0n III of the 1990 Settlement Agreement as the \"Arkansas Department of Education monitoring plan.\" In their pleadings, the parties often refer to this latter document as \"the Allen letter.\"  47The first budget Judge Woods approved for the Office of Metropolitan Supervisor was for fiscal year July 1, 1989, to June 30, 1990. That budget totaled $353,710.24 and included Mr. Reville's salary of $98,500, plus the salary and overhead for four other employees (docket no. 1246). Over the next ten years, the budget for the ODM more than doubled to reach $784,188 for fiscal year 2000-01. The staffing of the ODM also more than doubled to reach ten employees. As indicated previously, under the 1990 Settlement Agreement, the State/ADE was required to pay $200,000, annually, as its share of the cost of the ODM. The balance of the ODM budget was paid by LRSD, PCSSD, and NLRSD on a pro-rata basis that was calculated based upon the percentage of students in Pulaski County who attended each of the three school districts. For example, the ODM's 2000-01 fiscal year budget of$784,188 was allocated among the parties as follows: -26- A072A During the first few months of 1991 , LRSD, PCSSD, NLRSD, and Joshua entered into negotiations that resulted in numerous modifications to the 1990 Settlement Plans. It was the parties' position that they were authorized to make those changes based upon language in the Eighth Circuit's December 12, 1990 decision providing that the parties were \"free, by agreement, to modify the settlement plans .. . subject, of course, to the approval of the District Court.\" LRSD, 921 F.2dat 1393 n. 15. Subsequently, the parties submitted the modified Settlement Plans to the district court for approval. On June 21, 1991 , Judge Wright entered a Memorandum and Order rejecting all of the $784,188 - 200,000 (State/ADE payment) $584,188 LRSD's share (47.64% of total Pulaski County enrollment) PCSSD's share (35 .36% of total Pulaski County enrollment) NLRSD's share (I 7.00% of total Pulaski County enrollment) $278,307.16 206,568.88 99,311.96 $584, I 88.00 On September 28, 2001 , Judge Wright entered an Order ( docket no. 3 522) approving the ODM's budget for the current fiscal year, which is $707,071, This budget included a 5% pay raise for all employees, which totaled $21,042. Ms. Marshall's salary increased from $111,131 to $116,688 (docket no. 3509). Since the creation of the ODM, the district court has approved the following budgets: I. 1989-90 $353,710.24 (docket no. 1246) 2. 1990-91 $293,833.74 (docket nos. 1391 \u0026amp; 1405) 3. 1991-92 $591,557.52 (docket no. 1497) 4. 1992-93 $578,060.81 (docket nos. 1822 \u0026amp; 1836) 5. 1993-94 $646,617.00 (docket nos. 2055 \u0026amp; 2155) 6. 1994-95 $661 ,768.00 (docket nos. 2359 \u0026amp; 2380) 7. 1995-96 $631 ,273.00 (docket nos. 2567 \u0026amp; 2599) 8. 1996-97 $730,756.00 (docket nos. 2852 \u0026amp; 3001) 9. 1997-98 $730,716.00 (docket nos. 3158 \u0026amp; 3167) 10. 1998-99 $751 ,639.00 (docket nos. 3158 \u0026amp; 3167) 11. 1999-00 $764,872.00 (docket nos. 3361 \u0026amp; 3364) 12. 2000-01 $784,188.00 (docket nos. 3361 \u0026amp; 3364) 13. 2001-02 $707,071.00 (docket nos. 3509 \u0026amp; 3522) Thus, in the twelve years since its creation, the ODM has requested that LRSD, PCS SD, NLRSD, and the State/ADE pay for budgets totaling $7,932,228.57. As the largest of the three school districts, LRSD has been required to pay approximately 35% of the total cost of the ODM. -27- \"legion of proposed modifications\" to the Settlement Plans on the ground that they fell \"outside the narrow realm of modifications and adjustments deemed permissible by the Eighth Circuit [in its December 12, 1990 decision].\" LRSD, 769 F. Supp. at 1483, 1489.48 On July 15, 1991, the district court entered a lengthy Memorandum and Order denying the parties' motion to reconsider its rejection of their proposed modifications to the 1990 Settlement Plans. LRSD, 769 F. Supp. 1491. In doing so, Judge Wright made it clear that: (a) she disagreed with the parties' position that the Settlement Plans are \"fluid, open to continual and considerable revision as long as the parties agree and the changes are not facially unconstitutional\"; and (b) she viewed the Eighth Circuit's approval of the Settlement Plans as being \"akin to establishing a benchmark ... a sure guide for ending this dispute and getting the parties out of court.\" Id. at 1494. LRSD, NLRSD, PCSSD, and Joshua appealed on the ground that the district court's decisions \"confined them within limits that are too narrow, and that all of their proposed changes, being constitutional, workable, and fair, should have been approved.\" 48 Among the changes the parties sought to make in the four 1990 settlement plans were the following: (1) deleting from PCSSD's settlement plan major portions of the section on special education, especially concerning handicapped children; (2) eliminating provisions in PCSSD's settlement plan addressing issues related to black students being disciplined disproportionately; (3) removing several programs from PCSSD's settlement plan aimed at improving student achievement; (4) deleting from PCSSD's settlement plan the parties' agreement to abide by fourteen \"guiding principles\" which apply to the \"process of permanent plan development\"; (5) eliminating from LRSD's settlement plan science and social studies as core areas emphasized in remediation programs at the secondary level; (6) changing LRSD's settlement plan to limit the four-year-old program originally scheduled for all schools by 1993-94 to only eleven schools, with a promise that a \"long-range implementation plan will be developed for additional four-year-old classes\"; (7) changing LRSD's settlement plan to delay the development of parent home study guides and computer managed instructional technology for tracking student progress; (8) changing LRSD' s settlement plan by eliminating staff positions for program specialist and specialist for alternative classrooms; and (9) changing the interdistrict plan to reduce from six to four the number of interdistrict schools planned for the future. LRSD, 7 69 F. Supp. at 1484-87. -28-  I A072A / C-uo/oo.\\.. Appeal ofLRSD, 949 F.2d at 255. In affirming in part and reversing in part, the Eighth Circuit noted that \"[t]here is much in the District Court's opinions with which we agree,\" including the observation that the 1989 settlement \"should indeed be a benchmark for the future path of this case.\" Id. However, the Court went on to hold that the district court was \"too strict with itself' in not allowing the parties to modify details of those settlement plans that did not affect the three school districts' \"major substantive commitments to desegregation\": The desegregation obligations undertaken in the 1989 plan are solemn and binding commitments. The essence and core of that plan should not be disturbed . . . . If a question is truly one only of detail, not affecting the major substantive commitments to desegregation, the District Court has the authority to consider it. Id. at 256.49 Finally, to provide guidance to the district court, the Eighth Circuit set forth seven elements that form the \"essence and core\" of the Settlement Plans and from which there can be \"no retreaf': It may be helpful for us to state those elements of the 1989 plan that we consider crucial, and with respect to which no retreat should be approved. They are as follows: (1) double funding for students attending the incentive (virtually all-black) schools; (2) operation of the agreed number of magnet schools according to the agreed timetable; (3) operation of the agreed nlJffiber of interdistrict schools according to the agreed timetable; (4) intradistrict desegregation of PCS SD according to the agreed timetable; (5) the agreed effort to eliminate achievement disparity between the races; ( 6) the agreed elements of early-childhood education, at least in the incentive schools; and (7) appropriate involvement of parents. 49 As indicated supra at footnote 3, the district court and the parties generally have referred to the 1989 settlement documents as the 1990 Settlement Agreement and the 1990 Settlement Plans because the Eighth Circuit did not approve those settlement documents until December 12, 1990. Regardless of the year used to reference these documents, the Eighth Circuit and the district court are referring to the same Settlement Agreement and Settlement Plans. -29- AOZ2A Id. ( emphasis added). On May 1, 1992, Judge Wright entered an Order approving most of the proposed modifications to LRSD's 1990 Settlement Plan and the Interdistrict Settlement Plan, which the parties referred to as \"LRSD's May 1992 Desegregation Plan\" and the \"May 1992 Interdistrict Desegregation Plan.\" Judge Wright attached copies of both of these Plans to her May 1, 1992 Order (docket no. 1587). LRSD's implementation of its obligations under the 1992 Plans did not always go smoothly. For example, on March 19, 1993, Judge Wright delivered a strong statement to LRSD's School Board and attorneys explaining the importance ofLRSD fully and completely implementing its desegregation obligations under the Settlement Plans: Since the time of victory by the Little Rock School District in this case, when the Court of Appeals granted almost every facet of relief requested by Little Rock, the Little Rock School District has shown a tendency to drag its feet and act as if it had lost, rather than won, the litigation which it instituted. The Little Rock School District and the other school districts are in court because the Little Rock School District won its case and won the relief it requested. Yet the major complainer, the chief whiner, the number one barrier to a legitimate declaration of a unitary desegregated school system is the victorious complaining party, the Little Rock School District. The biblical reference, in a different context, is to the effect that if you ask, you will receive. Well, you asked, you got it, and it is the basic job of this Court to see that you receive it in full measure. * * * I have never seen, heard or read of a case in which the victors conducted themselves like the vanquished -- until now. If we have to have two full hearings a month, in which Board members are required to be present, then we will do so. We will do everything that is required to see that you take the medicine to achieve the cure that you asked the Federal Courts to give you. Judge Wright's Statement to LRSD Board members and Counsel at 2-3 and 6, attached as -30- A072A Exhibit I to docket no. 2730.50 Between 1991 and 1996, almost all of the district court's Orders involving LRSD related to the following issues: the approval ofLRSD's annual budgets (docket nos. 1759, 1897, 1958, 2216, 2280, 2319, and 2709); LRSD's closing of certain elementary schools (docket nos. 1926 and 2351); and LRSD's designation and construction of the interdistrict and magnet schools called for under the Settlement Plans ( docket nos. 1550, 1832, 1848, 1895, 2225, and 2329). During this period of time, the Eighth Circuit also entered several important decisions that: ( 1) extended school district millages under the 1990 Settlement Agreement, LRSD v. PCSSD, 971 F .2d 160 (8th Cir. 1992); (2) upheld the new zoning plan for electing school board members for LRSD and PCSSD, LRSD v. PCSSD, 56 F.3d 904 (8th Cir. 1995); and (3) clarified language in the 1990 Settlement Agreement regarding the State's funding obligations to LRSD, PCS SD, and NLRSD, LRSD v. PCSSD, 83 F.3d 1013 (8th Cir. 1996). On November 30, 1995, LRSD filed a Motion for Order of Dismissal ( docket no. 2573), requesting the district court to dismiss this case, with prejudice, pursuant to Attachment B to the 1990 Settlement Agreement.51 Attachment B stated, in pertinent part: It is further understood and agreed that the litigation now pending in United States District Court for the Eastern District of Arkansas, :Western Division, entitled Little Rock School District v. Pulaski County Special School 50In People Who Care v. Rockford Board of Education, 246 F.3d I 073, 1078 (7th Cir. 2001 ), Judge Posner observed that \"state and local officials are under no duty to love the chains that federal judges, however justifiably, fasten upon them.\" In this case, it is more than a little ironic that LRSD has forged each link in the chains that have bound it for the last thirteen years. 51 As indicated previously, Attachment Bis a fully executed Release pursuant to which all parties agreed to release any and all claims they had against LRSD arising from or relating to this litigation. -31- A072A ~  ._a _JOftL.___.. District No. I, et al., No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clark v. Board of Education of Little Rock School District (the \"Litigation\") is to be dismissed with prejudice as to the LRSD and the former and current members of its board named in the Litigation. This dismissal is final for all purposes except that the Court may retain jurisdiction to address issues regarding the implementation of the Plans. Attachment B to the 1990 Settlement Agreement ( docket no. 1174). In seeking that relief, LRSD acknowledged that the dismissal would not affect the district court's jurisdiction to address issues regarding the implementation of its . desegregation obligations or to conduct proceedings to enforce the terms of the Settlement Agreement or the terms of the Settlement Plans. On March 11 , 1996, the district court entered a Memorandum and Order ( docket no. 2640) denying LRSD's Motion for Order of Dismissal on the ground that: The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects ofits agreements (although some improvements have been made). Therefore, the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and the agreement. Even had the LRSD acted in good faith throughout the years, the logistics and complexity of this case are such that this Court's monitoring function would be impaired by entering an order of dismissal at this time. LRSD appealed that decision to the Eighth Circuit. I On December 15, 1997, the Court reversed and retiianded the case to the district court with instructions to enter an order dismissing the case with prejudice, as provided for under the terms of the 1990 Settlement Agreement. LRSD v. PCSSD, 131 F.3d 1255 (8th Cir. 1997). In reaching this decision, the Court stated the following: Although we can well understand the frustration the district court has experienced over the years in carrying out our instructions, we conclude that the District's motion should have been granted. As we held in our 1992 decision, the terms of the settlement agreement became the law of the case. See Little Rock -32- I I : I A072A School District, 971 F.2d at 165. As the agreement specifically provides, the district court is permitted (and indeed must, in order to comply with our instructions), to retain jurisdiction to address issues regarding the implementation of the desegregation plans. Moreover, the desegregation plaintiffs may bring proceedings to enforce the terms of the settlement agreement and the terms of the desegregation plans. In short, the entry of such an order would do nothing to relieve the three districts of their continuing obligation to honor their commitments as set forth in the settlement agreement and the plans. Id. at 1257-58 (footnote omitted). On January 26, 1998, the district court entered an Order ( docket no. 3109) that dismissed this case and \"cases consolidated herein, including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clarkv. Board of Education ofLRSD,\" with prejudice, as to LRSD and \"its current and former board members named in this litigation.\" The district court also entered a Memo to the File ( docket no. 3110) stating that, because the Plaintiff in this case was dismissed with prejudice, \"the Clerk is instructed to administratively terminate this case,\" but to \"keep the case files open and in their current location in the Clerk's office\" so that the Court can continue to perform its ongoing duties regarding the supervision and implementation of the desegregation plans. F. Joshua's Request For An Interim Award Of Attorneys' Fees For Performing Monitoring Activities After The 1990 Settlement On November 22, 1995, counsel for Joshua moved for an interim award ofattomeys' fees and costs in the amount of $805,611.81 for monitoring work performed after the Eighth Circuit approved the settlement of this case on December 12, 1990 ( docket no. 2565). Counsel for Joshua later reduced the amount of this request to $795,301.81 ( docket no. 2791) and argued that it should be apportioned among the three Pulaski County school districts as follows: LRSD: 75% to 80%; NLRSD: 5% to 10%; and PCS SD: 15% to 20%--with the final percentages totaling -33- ~-072A 100% (docket no. 2792). LRSD filed a Response and Supporting Memorandum of Law (docket nos. 2636 and 2637) challenging Joshua's right to be awarded any attorneys' fees or costs for post-settlement monitoring activities. LRSD argued that, as a part of the consideration for LRSD paying Joshua's counsel $2,000,000 in attorneys' fees in connection with the 1990 settlement, Joshua's counsel had specifically agreed, on the record, that they would not seek future fees from LRSD for monitoring activities during the life of the settlement plans. In support of its position, LRSD relied upon the following colloquy between counsel and the Eighth Circuit appellate panel during oral argument in LRSD, 921 F.2d 1371 : NORMAN CHACHKIN, ATTORNEY FOR JOSHUA INTERVENORS: I just want to make one other observation and Mr. Heller can confirm this. Although it is not written into the settlement agreement we are happy to confirm it here and to be bound by it. The agreement between Little Rock and Joshua was that the fee payment from the Little Rock School District would also cover out of the court monitoring activities by the attorneys for Joshua during the life of the settlement plans so long as it wasn't necessary to go back to court. If the settlement plans go forward as Mr. Walker suggested, the parties are committed to a monitoring system and committed to working together to ease any implementation problems and avoid any difficulties. That 's going to take attorney time. We have committed to Little Rock that we will not seek any fees from them for those activities unless it is necessary to go back to court for enforcement purposes and in that instance we '11 simply be free to make an application if we think we 're entitled to it. JUDGE RICHARD S. ARNOLD: Alright, thank you. Now, Mr. Heller, you are recognized. -34- ~ _ AO_Z2A_ CHRIS HELLER, A TIORNEY FOR LRSD: * * * I'd like to confirm what Mr. Chachkin said about the agreement. Because of the responsibilities assigned to the Joshua Intervenors in our settlement plans, there is significant work for them to do over the next six or seven years, and our agreement on the fees did contemplate that there would [be] no further payment for that work. (Emphasis added.) In a Memorandum Opinion and Order (docket no. 2821) filed on September 23, 1996, Judge Wright concluded that LRSD and Joshua contractually agreed that the $2,000,000 in attorneys' fees paid by LRSD in connection with the 1990 settlement also covered all monitoring activities performed by Joshua's counsel during the life of the Settlement Plans. Therefore, Judge Wright ruled that Joshua's counsel was not entitled to recover any attorneys' fees from LRSD for performing monitoring activities. On October 3, 1996, Joshua's counsel filed a Motion for Reconsideration of Fee Petition (docket no. 2833) and supporting Memorandum of Law (docket no. 2834), in which he urged the district court to award attorneys' fees under the \"bad faith\" exception to .the general rule that, absent a statute or enforceable contract, litigants must pay their own attomeys'.fees. On March 24, 1997, Judge Wright entered an Order (docket no. 2959) denying Joshua's Motion for Reconsideration. On April 22, 1997, counsel for Joshua filed a Notice of Appeal (docket no. 2966) of the district court's March 24, 1997 Order denying his request for interim attorneys' fees. I will return to discuss the final resolution of this issue later in this decision. -35- A072A G. LRSD's First Attempt To End Federal Court Jurisdiction On May 17, 1996, LRSD filed a Motion to End Federal Court Jurisdiction (docket no. 2665) and supporting Brief (docket no. 2666). In these pleadings, LRSD argued that: (1) it was only required to implement its desegregation obligations under its Settlement Plan and the Interdistrict Settlement Plan for six years; (2) it had implemented the Settlement Plan, beginning with the 1990-91 school year, and \"the six year term of the Plans will expire at the end of the 1995-96 school year''; and (3) \"LRSD has implemented in good faith many desegregation plans for more than three decades. LRSD was a substantially unitary school district in 1982, but it nevertheless filed this interdistrict litigation in a good faith effort to maintain a biracial public school system in Little Rock. A recent and exhaustive audit ofLRSD's desegregation obligations shows that LRSD is in substantial compliance with the Plans.\" Docket no. 2665. On August I, 1996, Joshua filed a Memorandum Opposing LRSD's Motion to End Federal Court Jurisdiction (docket no. 2730) in which they challenged LRSD's contention that the 1990 Settlement Plans called for a six-year implementation period. In support of their position, Joshua pointed out that no provision in any of the settlement documents limited LRSD's implementation of its desegregation obligations to six years. Joshua also argued that LRSD had failed to discharge its burden of establishing \"the requisite implementation of the court-approved settlement.\" On September 23, 1996, Judge Wright entered a Memorandum and Order (docket no. 2821) denying LRSD's Motion to End Federal Court Jurisdiction on the grounds that: (1) the 1990 Settlement Agreement and Settlement Plans do not contain any provision that allowed LRSD to terminate \"its duty to comply with the settlement plans after ... six years;\" and (2) -36- LRSD failed to provide sufficient evidence that it had \"substantially complied\" with its obligations under the Settlement Plans. The district court went on to urge LRSD and Joshua to modify ''the parts of the plan that are ineffective or unworkable\" so that LRSD could better position itself to argue that it is entitled to unitary status and relief from court supervision: Instead of presenting substantial evidence of its compliance with its goals as set forth in the plan, the LRSD submits arguments that it has achieved unitary status because data from the LRSD compares favorably with data from districts which have been declared unitary. The Court would be inclined to agree with the LRSD with respect to many of these arguments if the LRSD were not contractually bound by the plan which it voluntarily adopted. The Court has encouraged the parties to consider modifying those parts of the plan that are ineffective or unworkable. The Court has provided the parties with the testimony of experts to assist in the modification process. Instead, the LRSD has used the testimony of these experts to ask the Court to end Court jurisdiction without first proceeding with plan modifications. The Court cannot so easily relieve the district of its contractual obligations. Once again the Court invites the parties to follow procedures to modify the parts of the plan that are ineffective or unworkable. Docket no. 2821 at 12 (emphasis in original). On December 6, 1996, LRSD filed a Motion for Approval of Plan Development Period ( docket no. 2878) that requested Judge Wright: (I) to allow a six to nine month period for LRSD to concentrate its efforts to develop plan modifications to improve education and desegregation within the district; (2) to allow LRSD to use the ODM as a consultant to participate in the development of plan modifications in areas such as budget development, staff development, student assignments, and resolution of discipline issues; and (3) to withhold any further monitoring of the LRSD desegregation plan during this six to nine month period. In support of its Motion, LRSD noted that the Knight lntervenors, PCSSD, and NLRSD supported its request. -37- A072A ~ - LB,,_v_ On December 18, 1996, Joshua filed a Response ( docket no. 2891) that did not oppose LRSD's request for an interval of time to develop a new desegregation plan, but expressed reservations about ODM, \"as an ann of the court,\" participating in the negotiations between the parties. Joshua also urged Judge Wright to appoint additional monitors to work on a matter of particular concern to them--the alleged \"ill-treatment of class members.\" On December 27, 1996, Judge Wright entered an Order (docket no. 2901) granting LRSD's Motion. In this Order, Judge Wright held that: (1) LRSD \"will benefit from a temporary hiatus from monitoring and from the expertise of the ODM, in order to develop proposed modifications to the LRSD desegregation plan\"; and (2) ODM can advise LRSD and other parties during the negotiations for plan modifications and ODM can \"participate in negotiations as a facilitator,\" but \"ODM cannot be a negotiator for any party.\" Judge Wright also denied Joshua's request to hire \"additional monitors to handle complaints about mistreatment of class members.\" December 27, 1996 Order at 3 (docket no. 2901). H. The Perplexing Final Resolution Of Joshua's Request For Still More Attorneys' Fees FromLRSD On September 26, 1997, LRSD filed a Motion for Approval of Revised Desegregation and Education Plan ( docket no. 3049) and a supporting Memorandum Brief ( docket 1.10. 3050). After Joshua objected to a number of provisions in the proposed revised plan, LRSD and Joshua engaged in extensive negotiations to develop a revised plan which both parties could support. As part of these negotiations, LRSD and Joshua took up the still unresolved issue of Joshua's request for $795,301 in attorneys' fees for performing post-settlement monitoring -38- : I ' ' A072A activities, which was pending on appeal to the Eighth Circuit. 52 On January 21, 1998, LRSD and Joshua filed a Joint Motion for Approval ofLRSD's Revised Desegregation and Education Plan ( docket no. 3107) in which they admitted that ongoing negotiations were taking place on the attorneys' fees issue: \"Joshua has agreed that they will request that the Court of Appeals for the Eighth Circuit hold their two pending appeals in abeyance, and LRSD and Joshua have further agreed that they will attempt to resolve Joshua's past, present, and future claims for attorneys' fees and costs by mediation.\" January 21, 1998 Joint Motion at 2 ( docket no. 3107). See also Renewed Joint Motion for Approval ofLRSD's Revised Desegregation and Education Plan filed on March 23, 1998 (docket no. 3136). On February 27, 1998, the Eighth Circuit entered a Mandate (docket no. 3125) which granted \"the stipulation of the parties for dismissal of the appeal\" of Judge Wright's March 24, 1997 Order denying Joshua's request for interim attorneys' fees. The entry of this voluntary Judgment dismissing Joshua's appeal of the attorneys' fees issue strongly suggests that, sometime prior to February 27, 1998, LRSD and Joshua arrived at a settlement of that issue. In a letter agreement dated June I 0, 1998, 53 LRSD and Joshua formally documented their 52 As indicated previously, on April 22, 1997, Joshua appealed Judge .Wright's Order denying their requested interim attorneys' fees ( docket no. 2966). At the time the parties entered into these negotiations, that appeal was still pending before the Eighth Circuit. 53The first time this letter agreement became part of the record in this case was on March 15, 2002, when LRSD attached it as Exhibit 7 to its Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). Thus, before her decision to step down in this case, Judge Wright was never made aware of the facts surrounding the agreement that LRSD would pay Joshua's counsel $700,000 in attorneys' fees for past monitoring work, plus $48,333.33 per year for three years of future monitoring work. Furthermore, absent LRSD 's decision to make the June 10, 1998 letter part of the record, I would have very likely missed the troubling implications associated with the confluence of agreements on both the Revised Plan and the issue of Joshua's past and future attorneys' fees. Therefore, my -39- A072A settlement of all past and future claims for attorneys ' fees and costs as follows: LRSD will make the following payments [to counsel for Joshua] for past fees and costs: $100,000.00 on or before June 30, 1998; $100,000.00 on or before August 31, 1998; and $500,000.00 on or before October 31 , 1998. For fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan, LRSD will reimburse your firm up to $48,333.33 per year for three years beginning July 1, 1998. The payments described in this letter will constitute full and complete payment in satisfaction of all past or future claims for attorney's fees and costs except as specifically set forth in the Revised Desegregation and Education Plan. June 10, 1998 letter agreement, attached as Exhibit 7 to LRSD's Memorandum Briefin Support of Motion for an hnmediate Declaration of Unitary Status ( docket no. 3581) ( emphasis added). 54 Although not directly relevant to the issue of unitary status, I can think of no good explanation for LRSD's decision to voluntarily pay Joshua's counsel an additional $700,000 in attorneys' fees for performing monitoring work for which Judge Wright had ruled he was not entitled to be paid anything from LRSD. On top of this, one of Joshua's own attorneys, Mr. Chachkin, previously had admitted during oral argument before the Eighth Circuit that the attorneys' fees paid under the 1990 Settlement Agreement included future attorneys' time raising this issue now, based upon facts that were not known to Judge Wright w!Jile she presided over this case, should in no way be construed as a criticism of Judge Wright for not raising this issue earlier. As I have emphasized, it was LRSD's decision to file its counsel's June 10, 1998 letter as an exhibit to its March 15, 2002 Memorandum Brief in Support of Motion for an hnmediate Declaration of Unitary Status that alerted me to this issue. 54As indicated previously, Joshua's counsel argued to Judge Wright that LRSD should be allocated 75% to 80% of his $795,301 in attorneys' fees associated with performing past monitoring activities ( docket no. 2792). If those attorneys' fees had been allocated on that basis, LRSD would have been responsible forpayingJoshua's counsel between $596,475 and $636,240. I am at a loss to understand why LRSD would agree, in the June l 0, 1998 letter, to voluntarily pay Joshua's counsel $700,000, almost $ I 00,000 more than the median amount Joshua's counsel originally sought to recover from LRSD for his post-settlement monitoring work. -40- A072A 113eYA/ expended in connection with monitoring activities.55 It appears to me that Judge Wright's wellreasoned Memorandum Opinion (docket no. 2821) denying Joshua's Request for an Interim Award of Attorneys' Fees and her subsequent Order (docket no. 2959) denying Joshua's Motion for Reconsideration placed LRSD in an excellent position to prevail on Joshua's appeal of the district court's rulings to the Eighth Circuit. Holding what seemed to be the winning hand on appeal, I find it passing strange that LRSD would voluntarily agree to pay Joshua's counsel an additional $700,000 for post-settlement monitoring work when, as stated above, one of Joshua's other attorneys admitted this work was already included in the $2,000,000 LRSD paid to Joshua's counsel under the 1990 Settlement Agreement. I find it somewhat discomforting that LRSD and Joshua had a meeting of the minds on an essentially new desegregation settlement plan at the same time their attorneys were discussing the settlement of Joshua's counsel's request for a large interim award of attorneys' fees. However, I know of no facts establishing that the simultaneous negotiation of those two unrelated issues did not take place at arms length or involved a quid pro quo. From the inception of this case, Joshua's counsel has fought hard for his clients and has a well-documented record of zealously protecting their interests. I also rec~gnize that Joshua's counsel has manned the barricades of civil rights litigation in Arkansas for over four decades and that he has a reputation for never yielding on matters of principle. Accordingly, while I do not conclude that anything improper occurred in the simultaneous negotiation of these two unrelated issues, I do have a real concern about the public's perception of the timing of these events--which I fear has raised troubling questions and lingering doubts. 55See supra, pp. 34-35. -41- I also find it unsettling that, going forward, LRSD agreed to pay Joshua's counsel ''up to $48,333.33 per year for three years beginning July 1, 1998,\" for \"fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan.\" June 10, 1998 letter agreement, attached as Exhibit 7 to docket no. 3581. At a minimum, all of the terms and conditions of such an unusual arrangement should have been spelled out in writing, with a clear statement regarding the duties, if any, that Joshua's counsel owed to LRSD, the party paying his fees formonitoringthe implementation of the Revised Plan, and whether, under this arrangement, LRSD and Joshua's counsel entered into an attorney-client relationship. In any case, at least one thing is clear from the June 10, 1998 letter agreement: In exchange for being paid $4,027.78 per month by LRSD, Joshua's counsel specifically agreed to undertake the obligation of monitoring all aspects ofLRSD's implementation of the Revised Plan. Subsequently, Joshua's counsel submitted to LRSD periodic \"Statements for Legal Services Rendered\" for attorneys' fees incurred in connection with his work \"implementing and monitoring\" the Revised Plan.56 See Exhibit 8 to docket no. 3581. According to Joshua's counsel's periodic statements for legal services, LRSD paid him a total of $124,861.15, which was billed in the following installments: July, 1998, through October, 1998: $16,111.12; November, 1998, through October, 1999: $48,333.33; November, 1999: $4,027.78; December, 1999: $4,027.78; January, 2000, through May, 2000: $20,138.90; June, 2000: $4,027.78; July, 2000: $4,027.78; August, 2000, through September, 2000: $8,055.56; October, 2000: $4,027.78; 56As discussed infra at pp. 57-59, at no point between the district court's approval of the Revised Plan on April 10, 1998, and thefilingofLRSD's Compliance Report on March 15,2001, did Joshua's counsel ever raise any of the compliance issues that are now before me, pursuant to  8.2 through 8.2.5 of the Revised Plan. -42- A072A November, 2000: $4,027.78; December, 2000: $4,027.78; and January, 2001: $4,027.78. See Exhibit 8 to docket no. 3581.57 Thus, for each month between July, 1998, and January, 2001, LRSD paid Joshua's counsel $4,027.78 for attorneys' fees incurred \"monitoring\" LRSD's implementation of the Revised Plan. For good reason, there is a widespread public perception that this case has become a decades-old cottage industry--and a large one at that--for lawyers. Over ten years ago, in Judge Woods' decision to step down from this case, he decried \"the many appeals perfected in this case, some of which have accomplished nothing but enrichment of the participating attorneys,\" and called the lawyer fees paid by the three districts \"grossly exorbitant.\" LRSD, 740 F. Supp. at 635. Since that time, things appear to have changed little, with all three school districts paying substantial annual attorneys' fees to their own lawyers and substantial annual payments to the ODM, whose requested annual budget for the last several years has been in the range of$700,000. At the same time, the threat of paying large future attorneys' fees to Joshua's counsel hangs like the sword of Damocles above the heads of all the parties.58 57The record fails to contain an explanation of why Joshua's counsel did not submit \"Statements for Legal Services Rendered\" for the months of February thr01;igh June, 2001. 58As everyone knows, Arkansas is one of the poorest states in the country and has always had difficulty finding funds for public education. Although LRSD is better off than many school districts in the State, it is by no means affluent. Like other school districts, it struggles each year to make ends meet. For example, during the last few years, the Arkansas Democrat-Gazette has reported on the need for the repairorrenovation of the basic infrastructure in many LRSD schools and on school teachers who have been forced to purchase pencils and other basic school supplies for their students. By my calculations, since 1990, counsel for Joshua has been paid $3,974,861 ($3,150,000 + $700,000 + $124,861). Over that same period of time, I would guess LRSD, PCSSD, and NLRSD have paid their own attorneys a total of at least $4,000,000. If my estimate is correct, that means, since 1990, the attorneys for all parties in this case have been paid at least $8,000,000. As indicated, supra at footnote 47, the ODM has submitted budgets totaling $7,932,228.57. -43- I- A072A ~ /RAV R/R?I All members of the professional group, who have directly benefitted from the perpetuation of this case, are placed on notice that I intend to monitor closely the costs associated with this action. Being born and raised in Scott County, one of the poorest counties in Arkansas, I understand the meaning ofbeing careful with a dollar, and I expect the professional group to keep that important point fixed in their minds from here on out. Thus, since 1990, the \"professional group\" in this case probably has been paid close to $16,000,000. Counsel for LRSD, Joshua, and the staff of the ODM know that LRSD grapples annually with funding and budget issues. They also know that the approximately $16,000,000 paid to them since 1990 has come from funds earmarked for the school children of this district. In making this observation, I in no way mean to imply that lawyers and monitors have not been necessary to ensure that LRSD, NLRSD, and PCSSD properly implemented and \"scrupulously adhered to\" their desegregation obligations under the Settlement Plans. My only point is that I would have hoped this \"professional group\" would have kept uppermost in their minds that every penny paid to them for their work in this case is one less penny available to help in the education of a child. Thus, I would have also hoped that the \"professional group\" would have been as frugal and judicious as possible in the expenditure of their time or budgeted funds. One of the ways the attorneys could have kept this covenant with the district's school children would have been to discount their normal hourly billing rates. In the case of the ODM, it might have foregone raises and minimized staff and office space requirements in the interest of bringing this case to a close as economically as possible. My review of the pleadings since 1990 has dashed all such utopian hopes. For example, Judge Woods cited the \"grossly exorbitant\" lawyer fees paid by the three school districts as the \"principal reason for [their] poor financial situation\" and noted that LRSD' s attorneys had billed \"31 days in a 30-day month.\" LRSD, 740 F. Supp. at 635. Similarly, Judge Wright noted in her September 23, 1996 Memorandum Opinion denying Joshua's motion for interim attorneys' fees that their counsel was attempting to bill his time at the rate of $250 per hour, which she found was not \"reasonable.\" September 23, 1996 Memorandum Opinion at footnote 6 (docket no. 2821). Likewise, the staff and budget for the ODM has more than doubled since 1989, even though the more streamlined obligations of the Revised Plan approved in early 1998 would seem to have required less monitoring ofLRSD's implementation of those obligations. Similarly, for the last few years, it appears NLRSD has been unitary and has required very little in the way of monitoring by the ODM. Thus, I would have expected annual reductions in the staff and budget for the ODM, beginning in 1998, and continuing through the current fiscal year. That has not happened. -44- A072A I. Final Approval Of Revised Desegregation And Education Plan On April 10, 1998, Judge Wright entered a Memorandum Opinion and Order ( docket no. 3144) approving the Revised Plan. Importantly, Judge Wright held that the Revised Plan constituted a \"new consent decree or settlement agreement\" between LRSD and Joshua: The LRSD and Joshua have agreed that, if approved, the proposed Plan: shall supersede and extinguish all prior agreements and orders in the Little Rock School District v. Pulaski County Special School District, U .S.D. C. No. LR-C-82- 866, and all consolidated cases related to the desegregation of the Little Rock School District (\"LRSD\") with the following exceptions: a. The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 (\"Settlement Agreement\"); b. The Magnet School Stipulation dated February 27, 1987; c. Order dated September 3, 1986, pertaining to the Magnet Review Committee; d. The M-to-M Stipulation dated August 26, 1986; and, e. Orders of the district court and court of appeals interpreting and enforcing sections a. through d. above to the extent not inconsistent with this Revised Plan. Based upon this provision, this Court considers the LRSD Proposed Revised Plan an entirely new consent decree or settlement agreement between the LRSD and Joshua. April 10, I 998 Memorandum Opinion and Order at 3 (docket no. 3144) (emphasis added). Alternatively, Judge Wright concluded that, even if the Court considered the Revised Plan as a modification to the 1990 Settlement Plan,59 she would still approve the Revised Plan because 59 As indicated supra atp. 27, LRSD and Joshua agreed to certain changes in LRSD's 1990 Settlement Plan and the Interdistrict Settlement Plan. In a forty-four page Order entered on May 1, 1992 (docket no. 1587), Judge Wright approved most of those proposed modifications which were incorporated in the \"LRSD May 1992 Desegregation Plan\" and the \"May 1992 lnterdistrict Desegregation Plan.\" Judge Wright's April I 0, 1998 Memorandum Opinion fails to mention those Plans, which were the operative consent decrees LRSD was operating under at the time she entered her decision. -45- A072A I D- --- the parties had satisfied the standard for modifying a consent decree established by the Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 (1992), and LRSD, 56 F .3d at 914. In reaching this conclusion, Judge Wright noted that LRSD had implemented certain aspects of the 1990 Settlement Plan so successfully that the district court had withdrawn supervision over those areas. 60 However, the court also recognized that some goals in the 1990 Settlement Plan\"[ were] out of date for the current situation that exists in the LRSD and other specific, rigid goals in the 1990 Plan ... may never be met, regardless of the amount of effort and good faith put forth by the LRSD.\" April 10, 1998 Memorandum Opinion and Order at 6 (docket no. 3144) (footnotes omitted). One such group of potentially unreachable goals cited by Judge Wright were the \"goals in the 1990 Plan regarding achievement disparities [which] may never be met regardless of the effort put forth by LRSD.\" Id. See Testimony of Dr. Herbert J. Walberg at 17-25 (docket no. 2692); Testimony of Dr. David J. Armor at 18-39 (docket no. 2693); and Testimony of Dr. Gary Orfield at 25-31 ( docket no. 2768). J. LRSD's Implementation Of Its Obligations Under The Revised Plan Between April 10, 1998, and March 15, 2001, the date LRSD filed its Request for Scheduling Order and Compliance Report seeking unitary status, LRSD and Joshua filed no substantive pleadings addressing any problems arising from LRSD 's implementation of its obligations under the Revised Plan. In fact, only three documents dealing with LRSD's 601n an Order entered on March 27, 1996 ( docket no. 2648), Judge Wright released LRSD from Court supervision and monitoring in the areas of Multicultural Curriculum (LRSD May 1992 Desegregation Plan, docket no. 1587 at 63-80), Vocational Education (LRSD May 1992 Desegregation Plan, docket no. 1587 at 98-105), and Computerized Transportation System (LRSD May 1992 Desegregation Plan, docket no. 1587 at 227-28). See also February 9, 1996, Stipulation for Order (docket no. 2626). -46- implementation of the Revised Plan were filed during that period of time. First, on August 11, 1999, the ODM filed a lengthy Report (docket no. 3289) on LRSD's preparations for implementation of the Revised Plan. This Report reviewed the status ofLRSD's implementation of all aspects of the Revised Plan, including the following areas that have special relevance to Joshua's opposition to LRSD's pending request for unitary status: Extracurricular Enrichment Activities (pp. 12-16); LearningEnvironment(pp. 20-22); Mathematics(pp. 27-31); Program Assessment (pp. 42-43); Reading and Language Arts (pp. 44-48); Remediation (pp. 49- 52); and Student Discipline (pp. 67-71 ). The ODM's \"Summary and Conclusions\" that followed each section of the Report indicated that, overall, LRSD was doing a satisfactory job of implementing the Revised Plan. Second, on April 18, 2000, LRSD filed a 129-page Interim Compliance Report (docket no. 3356 dated March 15, 2000). Although LRSD was not obliged to file this Report, it voluntarily did so for two stated reasons: (1) \"to help the District assess its progress toward full compliance and to reassure the court, the parties, and the community of the District's good faith efforts to be in total compliance with the Revised Plan\"; and (2) \"[t]he District hopes to receive comments and suggestions from interested persons as to the Distric;t's compliance with the Revised Plan and the format and content of this status report.\" Interim Compliance Report at 1 (docket no. 3356). The Interim Compliance Report set forth in detail all of the programs, policies, and procedures that LRSD was implementing in accordance with its obligations under the Revised Plan. The ODM did not file any comments or objections to anything contained in LRSD's Interim Compliance Report. Likewise, nothing contained in that Report caused Joshua's counsel, -47- ! A072A who was being paid $4,027.78 per month by LRSD to monitor its implementation of the Revised Plan, to raise any compliance issues. Finally, no \"interested party'' raised any questions concerning whether, based on the programs, policies, and procedures described in the Interim Compliance Report, LRSD was in substantial compliance with its obligations under the Revised Plan. This silence, it seems to me, speaks rather eloquently. Third, on June 14, 2000, the ODM filed a 127-page Report of Disciplinary Sanctions in the LRSD (docket no. 3366).61 The introduction to this Report contained a broad disclaimer of what was not being evaluated: This document neither evaluates the district's discipline policies and procedures nor determines how the policies are followed at various schools. Moreover, the report does not measure the effectiveness of any program, training or practices the district may have instituted to address the need for all students to be disciplined fairly and equitably, regardless of their race or sex. While the disciplinary procedures are represented by the data are legitimate and important areas of inquiry, we have not examined them here. We do provide some additional information to explain the district's general approach to discipline and to set the context for our findings, but our report focuses on the LRSD's own records and what they reflect. Report of Disciplinary Sanctions at 1 (docket no. 3366).62 Furthermore, because LRSD maintained disciplinary records on only \"suspensions and expulsions,\" the Report was limited to an examination of LRSD's raw data, broken down by race and sex, for students who were 61The ODM prepared this Report as part of its ongoing monitoring of the way all three Pulaski County school districts imposed disciplinary sanctions on students. In previous years, the ODM had prepared similar Reports on NLRSD and PCSSD. Thus, the ODM's June 14 Report was not triggered by or related to anything in LRSD's March 15, 2000 Interim Compliance Report. 62By failing to evaluate and examine the many important areas covered by this disclaimer, the ODM substantially reduced the usefulness of its Report and made it virtually impossible to draw any conclusions from the Report that were not based on pure speculation. -48- I  I A072A ( suspended or expelled from each elementary school, junior high school, and high school during six school years, 1993-94 through 1998-99. While the data compiled in the Report revealed that a disproportionate number of AfricanAmerican male students were suspended or expelled at many schools, the lack of specific facts surrounding each suspension and expulsion (e.g., a description of the conduct giving rise to the disciplinary sanction, race of teacher or administrator issuing disciplinary sanction, socioeconomic background of student, etc.) made it impossible to determine, without speculation, the reason for this disparity. 63 Additionally, because LRSD administrators assigned many of the suspended or expelled students to alternative education programs64 but failed to maintain records documenting which suspended and expelled students were sent to those programs, it was impossible to determine from the Report how many days of school each of the suspended and expelled students actually missed. Finally, because the Report did not include any data for the 1999-00 school year, it was impossible to determine if converting LRSD's junior high schools to middle schools improved behavior problems and reduced the number of suspensions and expulsions. However, the Report made it clear that this change could affect future data: Beginning with the 1999-2000 school year, the district made a fundamental commitment to improving students' performance, both academic~lly and 63The preface to the Report made it clear that the disproportionate number of AfricanAmerican students suspended or expelled from school is a nationwide phenomenon. The Report also pointed out that the way students behaved in school was affected by a host of factors that were beyond the influence of school personnel, \"such as home environment, family values, and the level of socialization prior to starting school. ... \" Report at 6. Finally, the Report observed that: \"Another aspect of discipline that requires note is the tremendous increase in the number of single-parent households in our society. . . . This deficiency is particularly significant for adolescent males who live with only their mothers.\" Report at 7. 64See Report at 10-12. -49- A072A _ IJ3 D_ V A/A?\\ behaviorally, by converting to a middle school system (grades 6-8). Studies have shown that the grade 6-8 configuration is developmentally appropriate. The teaming practiced in middle schools is to provide a nurturing environment in which students can learn and also find help with the physical and emotional changes they are experiencing. Because the discipline data for 1999-2000 were not available at the time we prepared this report, we could not assess whether discipline and sanctions have changed in ways that might be attributable to the middle school approach. Report at 126. In the Report's \"Conclusions,\" the ODM made two primary criticisms of LRSD's disciplinary practices: (1) it had not maintained and compiled \"comprehensive data on all the discipline sanctions [which] may leave some problems uncovered, as well as thwart assessment of the extent to which the district is preventing racial discrimination in disciplinary actions overall\"; and (2) \"[ w ]bile the report data do not reflect overall serious behavior problems in LRSD, African-American males are being disciplined in disproportionately high numbers.\" Report at 125. The ODM also offered seven \"ideas . .. as suggestions for improving disciplinary procedures for all students in LRSD, while also reducing the over-representation ofblack students in disciplinary actions.\" Report at 127. K LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan On March 15, 200 I, LRSD filed a Request for Scheduling Order and Compliance Report ( docket no. 3410) and requested the court to declare it ''unitary with respect to all aspects of school operations.\" On June 25, 2001, Joshua filed their Opposition to LRSD's Compliance Report ( docket no. 3447) in which they argued LRSD was not entitled to unitary status under the Revised Plan. On March 15, 2002, LRSD filed the pending Motion for an Immediate Declaration of -50- A072A ,~ --- Unitary Status (docket no. 3580) and Supporting Memorandum Brief (docket no. 3581). On May 30, 2002, Joshua filed their Response in Opposition to LRSD's Motion for hnmediate Declaration of Unitary Status (docket no. 3604). On June 7, 2002, LRSD filed its Reply Brief (docket no. 3607). As indicated previously, under  11 of the Revised Plan, LRSD was entitled to the entry of an order declaring it unitary if no party challenged its substantial compliance with th~ Revised Plan. Because Joshua chose to challenge LRSD's \"substantial compliance,\" 11 of the Revised Plan imposed on them the burden of proof on that issue. Joshua's counsel has acknowledged that the Revised Plan imposed on his clients the burden of proving that, as of March 15, 2001, 65 LRSD was not in substantial compliance with its obligations under the Revised Plan. See Transcript of Proceedings on June 29, 2001, at 26 (docket no. 3461), and Transcript of Proceedings on July 9, 2001, at 26 (docket no. 3464). 65In its October 3, 200 I Order ( docket no. 3515), the district court required LRSD to elect between two options: Option!: (A) Present evidence concerning the LRSD's activities with respect to the Revised Plan beyond the date of March 15, 2001; and- (B) Produce the e-mails requested by Joshua beyond that date. Option 2: (A) Present evidence concerning the LRSD's activities with respect to the Revised Plan up to the date of March 15, 2001, and not beyond; and (B) Correspondingly, the LRSD would have no obligation to produce the e-mails requested by Joshua beyond that date. LRSD filed a Response to the October 3, 2001 Order ( docket no. 3517) objecting ''to being forced to select from the two options offered by the Court.\" Subsequently, LRSD advised Judge Wright that, without waiving its objections, it selected \"Option 2.\" Therefore, any evidence ofLRSD's \"compliance activities\" that took place after March 15, 2001, cannot be considered in deciding the question of unitary status. -51- A072A IAou A/0'\u0026gt;\\ rn. Relevant Provisions Of Revised Plan In Joshua's Opposition to LRSD's Compliance Report (docket no. 3447), they include a \"Seriatim Response to District's March 15, 2001 Compliance Report\" in which they list compliance problems or concerns with the following sections of the Revised Plan:  2.1 (LRSD's obligation of good faith);  2.1.1, 2.2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, and 2.2.7 (LRSD's obligations regarding faculty and sta:fl);  2.3 (LRSD's obligations regarding student assignment);  2.4 (LRSD 's obligations regarding special education and related programs);  2.5, 2.5.1, 2.5.2, 2.5 .3, and 2.5 .4 (LRSD' s obligations regarding student discipline);   2.6, 2.6.1, 2.6.2, and 2.11. l (LRSD's obligations regarding extracurricular activities, advanced placement courses, and guidance counseling); 2. 7 and 5 (LRSD's obligations regarding improving African-American academic achievement);  2.8 (parental involvement); and  3.6 (school construction and closing). Importantly, Joshua's Opposition to LRSD's Compliance Report was careful to note that their concerns regarding LRSD's compliance with faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing were based primarily on \"information and belief' or involved \"generalized suspicions\" regarding LRSD's future actions. After filing that Opposition, Joshua conducted consid~ble discovery to develop the facts to support their challenges to LRSD's request for unitary status. As indicated previously, before beginning the evidentiary hearings on Joshua's Opposition to LRSD's request for unitary status, Judge Wright instructed Joshua's counsel to present his argument beginning with his strongest first and proceeding to his weakest ( docket no. 3461 at 54- 55). During a hearing on July 9, 2001, which took place after the completion of the first two days -52- A072A ~ /1=1 ---- of testimony on July 5 and 6, 2001, Joshua's counsel stated that LRSD's three most serious areas of noncompliance under the Revised Plan were its failure to meet its obligations regarding: (1) good faith; (2) improvement of academic achievement for African-American students;66 and (3) improvement of the racial disparity in student discipline (docket no. 3464 at 26-29). During the evidentiary hearings on August 1 and 2, 2001, Joshua completed calling all of their witnesses on the issues ofLRSD's alleged substantial noncompliance with those three areas of the Revised Plan. At the beginning of the fifth day of evidentiary hearings on November 19, 2001, Judge Wright noted, on the record, that counsel for Joshua had \"rested his case\" on the first three areas  of LRSD's alleged noncompliance (docket no. 3558 at 14-15). After Judge Wright denied LRSD's Motion for Directed Verdict, it presented its case on November 19 and 20 (docket nos. 3558 and 3559). On December 11, 2001, Judge Wright conducted a hearing to schedule the remaining days of evidentiary hearings on Joshua's Opposition to LRSD 's request for unitary status ( docket no. 3560). During this hearing, Judge Wright agreed to allow Joshua and LRSD no more than five days to present additional testimony on what Joshua's counsel identified as the last three areas ofLRSD's alleged noncompliance with the Revised Plan: (1) advanced placement courses; (2) .. extracurricular activities; and (3) guidance counseling. Judge Wright also agreed to allow Joshua to present non-cumulative testimony regarding: LRSD's alleged failure to comply with its overall obligation of good faith regarding its implementation of programs, policies, and procedures 66Part of Joshua's argument that LRSD had failed to substantially comply with its obligation to improve the academic achievement of African-American students included the contention that LRSD had failed to make the annual \"assessments\" of the academic programs implemented to improve the achievement of African-American students as required by 2.7.1 of the Revised Plan. -53- A,_0 72_A_ _ _ ,. regarding advanced placement courses, extracurricular activities, and guidance counseling-, and how LRSD's programs, policies, and procedures governing advanced placement courses, extracurricular activities, and guidance counseling had adversely affected the academic achievement of Afiican-American students. I conducted the final three days of evidentiary hearings on those issues, beginning on July 22, 2002. At no point during those hearings, or during the six previous days of ev:identiary hearings, did Joshua present any evidence or arguments -to support the contentions in their Opposition to LRSD's Compliance Report (docket no. 3447) that LRSD was not in substantial compliance with its obligations regarding faculty and staff( 2.1.1, 2.2-2.2.5, and 2.2.7); student assignment( 2.3); special education and related programs( 2.4); parental involvement( 2.8); and school construction and closing( 3.6). Joshua's failure to present any evidence to support their contention regarding LRSD's alleged failure to substantially comply with those sections of the Revised Plan requires a finding that they have abandoned those arguments. In any case, Joshua clearly failed to maintain their burden of proving that LRSD failed to substantially comply with any of those particular sections of the Revised Plan. Thus, the detennination of LRSD 's request for unitary status turns on whether Joshua has ,' maintained their burden of proving by a preponderance of the evidence that LRSD has failed to substantially comply with the following obligations imposed on it under the Revised Plan: (I) good faith as set forth in  2.1; (2) student discipline as set forth in  2.5 through 2.5.4 and 2.12.2; (3) academic achievement of Afiican-American students as set forth in 2.7, 2.7.1, 5.1 through 5.8, and 2.12.2; ( 4) extracurricular activities as set forth in  2.6, 2.6.3, and 2.12.2; (5) advanced placement courses as set forth in 2.6, 2.6.2, and 2.12.2; and (6) guidance counseling -54- I AO~-- as set forth in  2.11.1. The provisions of the Revised Plan containing LRSD's obligations in these six disputed areas, along with other provisions of the Revised Plan that are relevant to the resolution of the issue of unitary status, are summarized below. A. LRSD's Obligation Of Good Faith Toe first obligation imposed on LRSD was to act in \"good faith.\" Because of the importance of this obligation to the question of unitary status, 2.1 of the Revised Plan ought, in fairness, to be quoted in its entirety: LRSD shall in good faith exercise its best efforts to comply with the Constitution, to remedy the effects of past discrimination by LRSD against African-American students, to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of LRSD and to provide an equal educational opportunity for all students attending LRSD schools. B. LRSD's Obligations Regarding Student Discipline Sections 2.5 through 2.5.4 set forth LRSD's obligations regarding student discipline. Section 2.5 obligated LRSD to implement programs, policies, and/or procedures \"designed to ensure that there is no racial discrimination with regard to discipline.\" Section 2.5.1 required LRSD to \"strictly adhere to the policies set forth in the Student Rights and Responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner,\" and 2.5.2 required LRSD to \"purge students discipline records after the fifth and eighth grades of all offenses, except weapons offenses, arson and robbery.\" Section 2.5.3 established the position of \"ombudsman,\" who was responsible for \"acting as an advocate on behalf of students involved in the discipline process, investigating parent and student complaints ofrace-based mistreatment and attempting to achieve equitable solutions.\" Finally,  2.5.4 obligated LRSD to ''work with students and their parents to develop behavior modification plans for students who exhibit -55- A072A IR-\u0026lt;\u0026gt;ID'\u0026gt;\\ frequent misbehavior.\" C. LRSD's Obligations To Improve And Remediate The Academic Achievement Of African-American Students Section 2.7 contained LRSD's core obligation regarding the academic achievement of African-American students: LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. Very significantly, nowhere in this section or any other section of the Revised Plan does LRSD assume any obligation to narrow or close the academic achievement gap between white students and African-American students. In order to detennine the effectiveness of LRSD's academic programs designed to improve African-American achievement, Section 2. 7. l obligated LRSD to \"assess the academic programs implemented pursuant to Section 2. 7 after each year.\" If the results of those assessments \"[reveal] that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program.\" D. LRSD's Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors Section 2.6 required LRSD to \"implement programs, policies and/or procedures designed to promote participation and to ensure that there are no barriers to participation by qualified African-Americans in extracunicular activities, advanced placement courses, honors and enriched courses and the gifted and talented program.\" Section 2.6.1 and 2.11.1 required LRSD to implement training programs to assist teac    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO.4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MOTION TO EXTEND TIME For its Motion, Plaintiff Little Rock School District (\"LRSD\") states: RECEIVED SEP - 4 2002 OFACEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS 1. LRSD requests an additional forty-eight hours within which to respond to the Joshua Interventor's \"Comments of the Joshua Intervenors on the LRSD's Proposed Findings of Fact and Conclusions of Law\" which was filed on August 29, 2002, but which LRSD received by mail on August 30, 2002. 2. LRSD requests additional time because of the number of issues raised by Joshua including new issues which could have been included in Joshua's August 19, 2002 submission. Without objection, the Joshua Intervenors previously received an extension of time of three days to file their \"Comments.\" 3. Counsel for the Joshua Intervenors has stated that he does not object to the extension of time requested by the LRSD. WHEREFORE, for the reasons set forth above, LRSD requests a forty-eight hour extension of the time within which they must file their response to Joshua's \"Comments of the Joshua Intervenors on the LRSD's Proposed Findings of Fact and Conclusions of Law\" to and including September 5 at 5:00 p.m. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 B~~ ~----- CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on September 3, 2002. Mr. John W. Walker Via Fax \u0026amp; mail JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 2 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 P. 0. Box 17388 Little Rock, AR 72222 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 BChristopherHe~li IN THE UNITED STATES DISTRICT COURT~t,{4,:,... EASTERN DISTRICT OF ARKANSAS Dts-,.4g; c!;;t, WESTERNDIVISION J,q S[\"p ~~ SY.. Mf:s ~ 4f. 0 3 2002 LITTLE ROCK SCHOOL DISTRICT lr,t,_.f~TIFF I:.._\u0026gt;/ZlE:frl( V. NO.4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL 1- j,r,--;_ () z_ MRS. LORENE JOSHUA, ET AL lJ (LV} ~/) KA THERINE KNIGHT, ET AL ~ ;/.;~;fr~ Ur c MOTION TO EXTEND Til\\.1E For its Motion, Plaintiff Little Rock School District (\"LRSD\") states: Df2p C1_E:f?,r DEFENDANTS INTERVENORS INTERVENORS 1. LRSD requests an additional forty-eight hours within which to respond to the Joshua Interventor's \"Comments of the Joshua Intervenors on the LRSD's Proposed Findings of Fact and Conclusions of Law\" which was filed on August 29, 2002, but which LRSD received by mail on August 30, 2002. 2. LRSD requests additional time because of the number of issues raised by Joshua including new issues which could have been included in Joshua's August 19, 2002 submission. Without objection, the Joshua Intervenors previously received an extension of time of three days to file their \"Comments.\" 3. Counsel for the Joshua Intervenors has stated that he does not object to the extension of time requested by the LRSD. WHEREFORE, for the reasons set forth above, LRSD requests a forty-eight hour extension of the time within which they must file their response to Joshua's \"Comments of the Joshua Intervenors on the LRSD's Proposed Findings of Fact and Conclusions of Law\" to and including September 5 at 5:00 p.m. ,HIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RU.LE 58 Ai\\JD/OR 79(a) FRC ON G O '2.- 6 7 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL I. PLAINTIFF'S RESPONSE TO JOSHUA'S COMMENTS ON PLAINTIFF'S PROPOSED FINDINGS OFF ACT AND CONCLUSIONS OF LAW Good Faith and Monell. RECEIVED SEP - 6 2002 OFACEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS In assessing good faith, the LRSD believes that the Court should distinguish between the conduct of the LRSD Board of Directors (the \"Board\") and the conduct of individual employees, and the LRSD cited the Court to the Supreme Court's decision in Monell v. New York City Dept. of Social Services, 436 U.S . 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which recognized this distinction for the purpose of establishing municipal liability under 42 U.S.C.  1983. Joshua argues that it is not appropriate to make this distinction because \"implementation falls to the day-to-day employees .. . . \" Joshua's Comments, p. 2. Joshua's argument is unpersuasive because the Revised Plan was an agreement between the Board and Joshua, and the issue is whether the Board substantially complied with the agreement. See Revised Plan  11. Revised Plan  2 contained the LRSD's core obligations. The statement of each specific obligation begins, \"The LRSD shall implement programs, policies and/or procedures designed to ensure .. .. \" See Revised Plan,  2. The Board decided the programs, policies and procedures to be implemented, and in certain instances by whom. For example, Revised Plan 2.6 provided, \"LRSD shall implement programs, policies and/or procedures designed to promote participation and to ensure that there are no barriers to participation by qualified African- Americans in . . . extracurricular activities .. .. \" The Board met this obligation by implementing a policy assigning to school principals the responsibility for promoting participation and ensuring that there were no barriers to participation by qualified AfricanAmericans in extracurricular activities. See,~, CX 719, Policy JJIB-Rl (high schools) and R- 2 (middle schools) (\"When racial disparities are identified in interscholastic athletic or spirit groups, the principal will work with the school staff to develop a plan for improvement where appropriate.\"). Thus, the Revised Plan did not \"establish[] roles and responsibilities for LRSD representatives other than school board members .. . ,\" as Joshua contends. Rather, the Board assigned roles and responsibilities to its employees as a part of implementing the Revised Plan. See CX 719. The fact that the \"day-to-day\" implementation of the Revised Plan fell to the Board's employees does not distinguish Monell. That was the precise question that Monell addressed: when should an governmental entity, like the Board, be held liable under  1983 for the tortuous conduct of its employees. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 1298, 89 L.Ed.2d 452 (1986). Similarly, even if the Court finds violations of the Revised Plan,1 the Court must decide whether the Board should be held accountable for those violations. Monell provides the Court a ready framework for making that decision. Monell also cannot be distinguished because it deals with a finding ofliability, rather than implementation of a remedy. See Joshua's Comments, p. 2. The LRSD does not cite Monell for the purpose of establishing the governing legal standard. The common question in Monell and the present case is to what extent should a governmental entity be held accountable for the acts of its employees. Monell provides guidance in answering that question. Finally, to the extent Joshua contends that the Board guaranteed that no employee would commit an act of racial discrimination, the Revised Plan does not support that contention. The 1The LRSD does not concede that Joshua came forward with evidence to establish any violations of the Revised Plan. 2 Board agreed to \"in good faith exercise its best efforts to comply with the Constitution, to remedy the effects of past discrimination by LRSD against African-American students, to ensure that no person is discriminated against on the basis ofrace, color or ethnicity in the operation of LRSD and to provide an equal educational opportunity for all students attending LRSD schools.\" Revised Plan,  2.1. In an organization the size of the LRSD, there will be employees who make bad decisions, some in good faith and maybe some not in good faith. All the Board can do is adopt policies and take reasonable steps to ensure its employees comply with those policies. That is what the Board agreed to do under the Revised Plan, and the evidence clearly established that it lived up to that agreement. II. Castaneda Joshua's reliance on Castaneda v. Partida, 430 U.S. 482, 499, 97 S.Ct. 1272, 1282, 51 L.Ed.2d 498 (I 977), is misplaced. 1n that case, the Supreme Court stated, \"Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings ofone definable group will not discriminate against other members of their group.\" Castaneda v. Partida, 430 U.S. 482, 499, 97 S.Ct. 1272, 1282, 51 L.Ed.2d 498 (1977). The LRSD has not asked the Court to make such a presumption. The evidence before this Court differs materially from the evidence before the Supreme court in Castaneda. That case concerned a challenge to the Texas system for selecting grand juries through the use of grand jury commissioners. The plaintiff used statistical evidence to establish a prima facie case of discrimination against Mexican-Americans. Id. at 496. This shifted the burden to the State of Texas \"to dispel the inference of intentional discrimination. Inexplicably, the State introduced practically no evidence.\" Id. at 497-98. The Supreme Court noted that the State failed to produce any evidence \"about the way in which the commissioners operated and their reasons for [selecting persons for the grand jury lists].\" Id. at 500. In the present case, Joshua failed to establish a prima facie case of racial discrimination by the LRSD. While Joshua presented evidence showing a small number of African-Ameri'can 3 AP English teachers at Central High School, no evidence was presented of the \"degree of underrepresentation.\" Id. at 494. This required evidence comparing the proportion of AfricanAmerican English teachers who had the training required to teach AP courses2 and who requested to teach AP courses3 with the proportion of African-American AP teachers. Id. Joshua failed to present evidence establishing the proportion of African-American English teachers with the training required to teach AP courses, and no African-American English teacher at Central festified that his or her request to teach AP courses had been denied. Even Dr. Faucette admitted on cross-examination that he had never requested to teach AP, despite his direct testimony that he had been denied the opportunity to do so. See Tr. July 22, 2002, pp. 177 and 215-16. Moreover, even assuming that Joshua had come forward with the necessary proof and that the degree of underrepresentation was sufficient to create an inference of intentional discrimination, see id. at 495-96, the LRSD, unlike the State of Texas, provided a race-neutral explanation for the small number of African-American English AP teachers at Central: the labor agreement with - the District's teachers, which requires consideration of factors such as experience, education and seniority in making teaching assignments. See Tr. July 22, 2002, pp. 90 and 218-19. Finally, this Court need not presume that LRSD's African-American administrators would not engage in racial discrimination because the LRSD presented evidence to they would not. Dr. Lacey testified that the District's secondary principals would not accept or condone racial discrimination within their schools. See Tr. July 24, 2002, p. 803-05 . See also Tr. July 22, 2002, pp. 85-86 (racial discrimination not acceptable at J .A. Fair), pp. 122-123 (racial discrimination not acceptable at Hall); Tr. July 23, 2002, 522 (teachers treat black and white students the same at McClellan). Similarly, Sadie Mitchell testified that principals fulfilled their responsibility to identify and eliminate barriers to African-American participation in extra- 216 2Specialized training is required to teach AP courses. See Tr. July 23, 2002, p. 518. 3Teachers are asked each year to request teaching assignments. See Tr. July 22, 2002, p. 4 curricular activities. See Tr. July 22, 2002, p. 262. More generally, the Court heard evidence of the administration 's commitment to complying with the Revised Plan and to working in the best interest of all students. See, U, Tr. Nov. 19, 2001, pp. 189 and 191 (\"We talked a great deal about how to embed the plan in the work of the District, so it became the work of the District, and not something sitting over to the side that was layered on top of what people normally did.\") Therefore, this Court has a sufficient evidentiary foundation to conclude that LRSD's AfricanAmerican administrators would not discriminate against African-American students or teachers.4 See Coates v. Johnson \u0026amp; Johnson, 1982 WL 285 *53 (N.D. Ill. 1982). Joshua next purports to provide the Court examples of \"objective\" violations of the Revised Plan not cured by the fact that the decision maker was African-American. Each of these alleged violations will be discussed in tum. First, Joshua asserts that the Revised Plan obligated the LRSD \"to ensure\" no racial discrimination in student discipline and this, in tum, obligated the LRSD to investigate the cause - of the racial disparity in student discipline. See Joshua's Comments, p. 3. Joshua then pulls out of context a single sentence from the testimony of Dr. Linda Watson to purportedly establish a violation of these obligations. 1n fact, the Revised Plan did not obligate the LRSD to investigate the racial disparity in student discipline. See LRSD's Proposed Findings, p. 56. The LRSD agreed to \"implement programs, policies and/or procedures designed to ensure that there is no racial discrimination with regard to student discipline.\" Revised Plan  2.5. In this instance, the procedure to be implemented was also agreed to by the parties. The LRSD was to \"strictly adhere to the policies set forth in the Student Rights and Responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner.\" Revised Plan  2.5 .1. This is 4Joshua makes much of the fact that Central's Principal Rudolph Howard was not called to testify at trial. The LRSD disagrees that Howard's testimony was necessary. The anecdotal evidence concerning Central falls far short of that necessary to establish institutional discrimination. See Wessmann v. Gittens, 160 F.3d 790, 806 (1998). Moreover, Joshua's general objections and Judge Wright 's refusal to allow the LRSD to conduct meaningful discovery (See Tr. October 2, 2001 , Docket No. 3503) made it extremely difficult for the LRSD to anticipate Joshua's witnesses before the parties simultaneous submission of their witness lists. 5 what the LRSD did, and it provides context for Dr. Watson's testimony that, \"I can't say we were looking at it based on race. We were looking at the number of suspensions. We are trying to offer programs that African-American students, as well as any other students, [ could) participate in.\" Tr. Nov. 19, 2001 , p. 163.5 The LRSD never agreed to reduce or eliminate the racial disparity in student discipline, and Joshua's attempt to read such a requirement into the Revised Plan cannot be reconciled with the plain language of the agreement. Second, Joshua asserts that the Revised Plan \"promised affirmative action\" to increase African-American participation in extracurricular activities. See Joshua's Comments, p. 3. If Joshua contends that the Revised Plan required an \"affirmative action\" program with regard to extracurricular activities, the Revised Plan clearly contained no such requirement. Revised Plan  2.6 required the LRSD \"to implement programs, policies and/or procedures designed to promote participation and to ensure that there are no barriers to participation by qualified African-Americans in ... extracurricular activities.\" The LRSD's obligation to promote - participation cannot reasonably be construed as an obligation to create an affirmative action program. To the extent Joshua means that the LRSD was to actively work to encourage participation and eliminate barriers, the LRSD did this. To establish the alleged violation of this obligation, Joshua argues Sadie Mitchell \"had the lead responsibility\" for implementation of this obligation, but that her approach was to \"wait for complaints.\" See Joshua's Comments, 3-4. The record does not support Joshua's premise. As discussed above, the Board assigned responsibility for monitoring this obligation to school principals. The LRSD's witnesses all agreed on this point. See,~' Tr. July 22, 2002, p. 136. Joshua concludes that Mitchell had \"lead responsibility\" because she supervised the Assistant Superintendent for School Services, 5 As Dr. Watson explained, the LRSD attempted to provide programs to help all students in need, not just African-American students. Nothing in the Revised Plan required the LRSD to provide these programs to only African-American students. To exclude non-African-American students because of their race would in fact violate the Revised Plan's requirement that there be \"no discrimination with regard to student discipline.\" See Revised Plan 2.5 . 6 Dr. Lacey, who supervised secondary school principals.6 As to her actual responsibility, Mitchell testified: Q. You are aware. Let's just talk about the reality. You were aware -- you have not heard the testimony. But you are aware, for instance, quiz bowl and debate, Odyssey of the Mind, various activities were all white, were you not? A. Yes. Q. I see. Did you develop a plan for changing that? A. I did not develop a plan. The building principal did. Q. Well, in the three years that the plan was in operation before the report seeking release from unitary status, did you have any occasion to prepare any writing reflecting that was shared with the Joshua Intervenors or the public reflecting what actions you would take to change those patterns? A. I did not, because Joshua did not request a report through the formal compliance complaint. Q. You are not suggesting that you only prepared requests or reports at Joshua's request, are you? A. I only respond to complaints from patrons, community, Joshua, OD Ms, and anybody else, through fonnal complaints. Tr. July 22, 2002, p. 262 (emphasis supplied). Mitchell's testimony was entirely consistent with District policy. Secondary principals were responsible for resolving complaints about extracurricular activities. See, ~ ex 719, Policy JJIB-Rl (high schools) and R-2 (middle schools) (\"When racial disparities are identified in interscholastic athletic or spirit groups, the principal will work with the school staff to develop a plan for improvement where appropriate.\"). The Handbooks provided that students or parents not satisfied with the principal's resolution of their complaint could appeal to the Assistant Superintendent for School Services or the Associate Superintendent for School Services, and then to the Superintendent. See ex 670, p. 3. Nothing about this process violated the Revised Plan. 6Following this reasoning, the Superintendent had \"lead responsibility\" because he supervised Mitchell. 7 Moreover, the implicit assumption in Joshua's argument is that the Revised Plan required proportional representation of African-Americans in all extracurricular activities. The plain language of the Revised Plan invalidates this assumption. It called for encouraging participation and removing barriers to participation so activities would be open to all interested students. See Revised Plan,  2.6. Nothing required the LRSD to manufacture interest or establish quotas for the sake ofracial balance. Revised Plan 2.12.2 required the LRSD to develop remedies to racial disparities in activities \"where appropriate.\" Thus, the Revised Plan acknowledged that not all racial disparities in activities require a remedy. No remedy would be appropriate, for example, where the racial disparity results solely from individual student choices. In a related argument, Joshua contends that the Revised Plan required the District to investigate the racial disparity in the University Studies Program at Hall High School. This contention ignores the fact that Revised Plan  2.6 applies to \"qualified\" African-Americans. Joshua presented no evidence as to the proportion of qualified African-Americans at Hall from which it could be determined whether there was a racial disparity. Moreover, it is not true that \"there is no claim or evidence of an LRSD study of possible barriers . . . \" As quoted above, Mitchell testified that principals had this responsibility, and she believed they fulfilled that responsibility. See Tr. July 22, 2002, p. 262 Next, Joshua contends that the LRSD's use of activity accounts to address financial barriers violated Revised Plan  2.6. See Joshua's Comments, p. 4. The implicit assumption in this argument is that the LRSD agreed to eliminate every barrier to participation. That is not true. The LRSD agreed to \"implement programs, policies and/or procedures designed ... to ensure that there are no barriers to participation by qualified African-Americans in . .. extracurricular activities.\" See Revised Plan  2.6 ( emphasis supplied) and Tr. July 24, 2002, p. 775. Joshua argues that the process developed by the LRSD for addressing financial barriers to participation was inadequate, but there is no factual basis for this argument. There was no 8 evidence that a single student was denied participation in an extracurricular activity due to a financial barrier. Later in its Comments, Joshua argues that a financial barrier caused a reduction in the African-American enrollment in the University Studies Program at Hall. Joshua's Comments, p. 8. While it is a fact that students must pay tuition to UALR to participate in the program, it is pure speculation to conclude that this caused the decline in African-American enrollment in the second year of the program. See Final Report, p. 46. There was no evidence that a single student was denied admission to the program because he or she was unable to pay the tuition. To Dr. Lacey's knowledge, only one student had sought financial assistance to participate in the program, and the District was able to solicit a private donation to pay the tuition for that student. See Tr. July 24, 2002, p. 802. See also Tr. July 22, 2002, p. 268 (Mitchell testified that she had used money from her budget to buy instruments for students in need). Finally, Joshua argues that the way in which Rudolph Howard assigned AP English - teachers at Central showed bad faith in violation of Revised Plan  2. I. As discussed above, the evidence presented by Joshua failed to create an inference of intentional racial discrimination under Castaneda. More importantly, the District implemented policies \"designed\" to address this potential barrier. Dr. Lesley testified that the District suggested principals involve more teachers in teaching Pre-AP and AP classes, rather than having one teacher teach all of the Pre-AP and AP sections. This would allow greater opportunity for African-American teachers to teach Pre-AP and AP courses. See Tr. July 22, 2002, p. 695 . Jim Mosby, Principal of Southwest Middle School, did as the District suggested and had all of his core subject teachers teach at least one Pre-AP course. See Tr. July 24, 2002, p. 571. The District also participated in the College Board's \"Teachers of Color\" program. See Tr. July 24, 2002, p. 671. These efforts demonstrate the District's recognition of this potential barrier and implementation of procedures and programs designed to address it. This was all the Revised Plan required. III. Substantial Compliance. 9 The issue before this Court is whether the LRSD \"substantially complied\" with its Revised Plan obligations. See Revised Plan  11. No evidence was presented as to what the parties meant by \"substantial compliance.\" However, the phrase \"substantial compliance\" has a recognized meaning in the context of termination of a consent decree and should be interpreted consistent with that meaning. See AMI Civil 4th 3014 (Supp. 2001) (\"You should interpret words or phrases associated with a particular trade or occupation as experienced and knowledgeable members of that trade or occupation use them, unless evidence discloses that the parties used them in a different sense.\"). The LRSD cited Cody v. Hillard, 139 F.3d 1197, 1199-1200 (8 th Cir. 1998) only for the purpose of establishing the recognized meaning of the phrase \"substantial compliance\" in this context. Cody actually addresses the generally applicable standard for termination of a consent decree. That standard does not apply in the present case because the Revised Plan included a standard for termination. See Revised Plan  11. If the Court decides not to rely on Cody to define substantial compliance, then Cody is irrelevant. Moreover, Joshua misinterprets Cody in arguing that it establishes a three-step inquiry. The court in Cody stated: [T]he district court must exercise its discretion in determining whether those violations were serious enough to constitute substantial noncompliance and to cast doubt on defendants' future compliance with the Constitution. See McDonald [v. Carnahan], 109 F.3d [1319,] 1322-23 [(8 th Cir. 1997)]. Moreover, the ultimate question of whether the defendants are likely to comply with the Constitution in the absence of court supervision is a question of fact, see Dowell, 498 U.S. at 24 7, 111 S.Ct. at 636-37. Id. at 1199-1200. The most logical reading of this paragraph is that violations of a consent decree \"constitute substantial noncompliance\" only when they \"cast doubt on the defendants' future compliance with the Constitution.\" Under Joshua's interpretation, a district court would be required to continue supervision of a school district based on substantial noncompliance, even though the district court had no concerns about the school district's future compliance with the Constitution. Such an interpretation would be inconsistent with the district court's \"duty to return the operations and control of schools to local authorities\" at the earliest practicable date. Freeman v. Pitts, 503 U.S. 467, 490 (1992). N. The Agreement. The LRSD agrees that the issue before this Court is whether the LRSD substantially complied with the Revised Plan, and at this time at least, the LRSD does not seek to be declared unitary based on anything other than its substantial compliance with the Revised Plan. The LRSD cited the Court to other unitary status cases to provide context for assessing the LRSD's compliance and the evidence presented by Joshua. As the discussion in Section IT, supra, illustrates, Joshua is trying to rewrite the parties' agreement and impose additional obligations on theLRSD. Revised Plan  2 required implementation of policies \"designed to ensure\" specific goals. Joshua 's arguments suggest that the LRSD guaranteed achievement of the goals. To avoid these goals being construed as obligations, the LRSD insisted that the following language be added to - the Revised Plan: The identification of specific goals in this Revised Plan is not intended to create an obligation that LRSD shall have fully met the goal by the end of the plan's term. LRSD's failure to obtain any of the goals of this Revised Plan will not be considered a failure to comply with the plan if LRSD followed the strategies described in the plan and the policies, practices and procedures developed in accordance with the plan. Revised Plan, p. 14 n.2. As stated, the Revised Plan only required the LRSD to develop appropriate programs, policies and procedures. The LRSD worked hard to achieve its goals (e.g. Tr. August 1, 2001, pp. 725-26; Tr. Nov. 20, 2001, pp. 188-89, 428), but it made no guarantees. This Court should reject Joshua's attempts to read such guarantees into the parties' agreement. V. Joshua's Failure to Challenge the LRSD's Compliance. Joshua is correct that Revised Plan  11 does not expressly require an issue to be raised pursuant to Revised Plan  8 before it may be the basis for denying the District unitary status. However, an implied term of the LRSD's agreement to pay Joshua in advance for monitoring 11 was that Joshua would bring compliance issues to the Board's attention in a timely manner.7 Current Board President Baker Kurrus testified that the Board agreed to pay Joshua in advance to facilitate \"a process whereby you on behalf of your clients were going to step forward and tell us what we were doing wrong.\" Tr. July 24, 2002, p. 763. Kurrus testified that the Board relied on Joshua to bring compliance issues to the Board's attention so they could be addressed and would not prevent the District from being declared unitary. Tr. July 24, 2002, p. 763. The Board's reliance was reasonable, and thus, principles of estoppel should bar Joshua from complaining about policies of which it was aware but never challenged during the term of the Revised Plan. See Waste Management of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1144-45 (61 h Cir. I 997)(recognizing a district court's jurisdiction to consider whether the equitable principle of estoppel has altered a party's obligations and duties under a consent decree). Joshua's failure to raise compliance issues is also relevant in interpreting the Revised Plan. Under traditional contract law principles, a party with knowledge that the other party's  - performance violates the parties' agreement must put the breaching party on notice or the nonbreaching party will be held to have waived the breach. See Bharodia v. Pledger, 66 Ark. App. 349, 355, 990 S.W.2d 581 , 585 (l 999)(\"It has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract.\"); Stephens v. West Pontiac-GMC, Inc., 7 Ark. App. 275,278,647 S.W.2d 492,493 (1983)(\"The rule is that a party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and suffers the other party to continue in performance thereof, waives the right to insist on the breach.\"). For example, Joshua complains that the LRSD violated Revised Plan 2.7.1 by not preparing a formal program evaluation each year of every program designed to improve AfricanAmerican achievement. However, Joshua knew no later than August 11 , 1999, when ODM 7Counsel for Joshua bad no conflict of interest in making such an agreement. It would have been in the best interest of the class to have violations of the Revised Plan remedied as soon as possible. 12 issued its report on LRSD's implementation plans, that the LRSD did not intend to do so. Joshua's failure to put the LRSD on notice that it considered this a violation constitutes a waiver of this alleged violation. Also under traditional contract principles, Joshua's failure to assert many of the interpretations of the Revised Plan they now advance militates against the Court adopting Joshua's interpretation. The Court should give weight to the parties ' interpretation of the Revised Plan as evidence by their conduct during performance. See AMI Civil 4th 3015 (Supp. 2001) (\"You should give weight to the meaning placed on the language by the parties themselves, as shown by their statements, acts, or conduct after the contract was made.\"). Using the same example as above, Joshua's failure to object to the LRSD's interpretation of Revised Plan 2.7.1 during the plan 's term weighs in favor of the Court adopting the LRSD's interpretation as set forth in ODM's August 11 , 1999 report and the Interim Report. VI. Dr. Terrence Roberts Joshua contends that LRSD's discussion of Dr. Terrence Roberts' testimony ignored his \"ultimate views.\" Joshua 's Comments, p. 9. Joshua points to Dr. Roberts ' testimony wherein he seems to draw a distinction between the LRSD seeking unitary status and compliance with the Revised Plan: The concern was to be released from court supervision. And it seemed to be a matter of whatever it took to achieve that goal, and it didn't really have anything to do with the students or the Plan. Tr. July 24, 2002, p. 629. In fact, the only thing LRSD could do in order to be released from court supervision was to comply with the Revised Plan. Revised Plan,  11 . It would have been impossible for LRSD to pursue unitary status in a way that \"didn't really have anything to do with the students or the Plan.\" Joshua also reminds the Court of Dr. Roberts' testimony that the true beneficiaries of the LRSD's advanced placement curriculum are white students. Joshua 's Comments, p. 10; Tr. July 24, 2002, p. 630. This testimony does not advance Joshua 's case. Although there are presently F\\HOME\\FENDLEY\\LRSD 200l\\des-unitary-response-Joshua-coJ1YllC\"llts.wpd 13 more white students than black students enrolled in advanced placement courses, LRSD has removed barriers to enrollment in those courses, significantly increased the enrollment of African-American students in advanced placement courses, and put in place a system of Pre-AP courses and other supports designed to insure continued increases in the enrollment of AfricanAmerican students in advanced placement courses. Tr. July 22, 2002, p. 86; Tr. Nov. 20, 2001, pp. 374-75; Tr. July 24, 2002, pp. 668-95 . Joshua misconstrues the LRSD's request for an orderly transition (Plaintiffs Proposed Findings of Fact and Conclusions of Law, p. 63) as signaling that the LRSD \"plans changes in student assignment policies which would promote segregation of pupils.\" Joshua's Comments, p. 10. According to Joshua, \"this aspect of the LRSD submission clashes with repeated LRSD assertions that the District is committed to a future without legal violations .\" In fact, the LRSD's request for a transition period is designed to allow the LRSD to maintain its current policies while the District considers the legality of continuing those policies after it is declared unitary: Compare Gretter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) with Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). If the LRSD were planning to change its student assignment policies, it would not seek court approval of a transition period. VII. Section 2.7-Achievement Although the issue before the court is whether the LRSD implemented \"programs, policies and/or procedures designed to improve and remediate the academic achievement of AfricanAmerican students,\" Joshua argues that conditions which existed before implementation of the Revised Plan and which were drastically changed by the implementation of the Revised Plan 2.7 can somehow be considered as evidence that the LRSD failed to implement the Revised Plan. Joshua's Comments, pp. 14-15. Joshua contends that the achievement disparity between AfricanAmerican and white children exists partly because \"the LRSD admittedly taught its AfricanAmerican students, including in the massive Title I Program, in a manner causing harm to their achievement levels.\" Joshua's Comments, p. 14. Dr. Lesley flatly denied this accusation: F\\HOJ\\ff\\FENDLEY\\l.RSD 200 1\\des-unitary-response-Joshua-conmcnts.wpd 14 Q. [By Bob Pressman] Do you wish to deny that any part of the difference in the success rates on the two Benchmark Exams was due to black students having been less exposed in the Little Rock Schools to the content of the Benchmark Exams than white students? A. Yes, I will deny that. To the best of my knowledge, it doesn't happen that we differentiate. Tr. August 1, 2001 , p. 697. Dr. Lesley testified that \"[t]he instruction for white children and black children is the same in the Little Rock School District, but school is not the only place where children learn.\" Tr. August 1, 2001, p. 696. The evidence clearly does not show that the academic achievement disparity which existed in LRSD before the implementation of the Revised Plan was the result ofLRSD failing to properly teach African-American students. Tr. August 1, 2001 , pp. 696-97. But the issue before the Court remains whether LRSD substantially complied with the requirements of Revised Plan 2.7. Dr. Lesley testified about the many things the LRSD did during the term of the Revised Plan which v.:ere \"designed to improve and remediate the academic achievement of African-American students.\" Tr. Nov. 19, 2001 , pp. 194-214; Tr. August 1, 2001, pp. 713-26. Regarding the low Benchmark Exam scores for white children and African-American children in the LRSD, Dr. Lesley testified that \"those scores are why we changed the curriculum.\" Tr. August 1, 2001, p. 697. Joshua's argument that the LRSD somehow failed to teach its African-American students is further undercut by the fact that African-American students in the LRSD generally perform better on the Benchmark Exams than African-American students throughout the State and that poverty, rather than race, accounts for the low scores. Tr. Nov. 20, 2001, pp. 420-22; Tr. Nov. 20, 2001, pp. 415-17, 441; CX 731. The evidence in this case also shows that the programs, policies and procedures designed to improve and remediate the academic achievement of African-American students are working. CX 594; Tr. Nov. 20, 2001, pp. 405-10; Tr. August 1, 2001, pp. 724-25. Regarding the tests LRSD uses to assess early literacy, Dr. Lesley testified: F'.\\HOME\\FENDLEY\\LRSD 2001\\des-unitary-respomc::-Joshua-corrmcnts wpd 15 On every one of those measures, there are eight tests, on every one of those measures there was a considerable narrowing of the achievement gap between African-American and other students, and the gap was completely closed on two of them and almost on two others, by the end of grade two. Tr. Nov. 20, 2001 , pp. 409-410. The LRSD believes that it will continue to improve the achievement levels of its African-American students. Tr. Nov. 20, 2001 , p. 422 (\"[W]e have in place now almost everything we need to do to keep improving.\"); Tr. Nov. 20, 2001 , p. 428 (\"[T]here is a great deal going on that we think will keep the District moving forward and keep improving.\") Joshua has provided the Court no reason to believe otherwise. F \\HOME\\FENDLEY\\LRSD 200 I \\des-uni1ary-rcsponsc-Joshua-corrmen1s wpd Respectfully Submitted, LITTLE ROCK SCHOOL DISTRJCT FRJDA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 BY~- 16 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on September 5, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Nations Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201 -3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\\HOME.\\FENDLEY\\l.R.SD 200 1\\dc.s-uni1ary-response-Joshua-comments.wpd 17 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs.  4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KA THERINE KNIGHT, et al ORDER FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS SEP O 6 2002 DEFENDANTS INTER VEN ORS INTER VEN ORS Before the Court is the request of the Magnet Review Committee (\"MRC\") for approval of the interdistrict magnet schools' final budget for the 2001-2002 school year and proposed budget for - the 2002-2003 school year. The MRC communicated both budgets to the Court in a letter dated July 31, 2002, attached to my August 19, 2002 Order (docket no. 3661). Without objection, I hereby approve both budgets as submitted. IT IS SO ORDERED this 6th day of September, 2002. Wm. R. Wilson, Jr.  UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE Wl--q-i ~Ulf; 58 AND/OR~ ON 5\"L 9/1 .11-- sy_\"7'\" ~--_.._--'---- U.f !fm~cRRT EASUAN DISTRICT ARKANSAS IN THE UNITED STATES DISTRJCT COURT EASTERN DISTRICT OF ARKANSAS SEP 1 2 2002 WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT VS. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al MRS. LORENE JOSHUA, et al KATHERINE KNIGHT, et al RECEIVED SEP 1 3 2002 OFRCEOF DESEGREGATION MONITORING ORDER ~~M~;.,. ' DEP. CL'. AK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS On July 30, 2002, Plaintiff filed a Motion to Strike, asking this Court to strike from the record any evidence presented by Joshua concerning events which occurred after March 15, 2001 . On August 9, 2002, Plaintiff filed a Designation of Testimony to be Stricken. The Joshua Intervenors filed a Response to Plaintiffs Designation of Testimony to be Stricken on August 14, 2002. There are portions of the testimony that Joshua does not object to striking. Thus, the following testimony is excluded by agreement of the parties: PAGE LINES 45 5-25 46 1-12 60 24-25 61 1 63 16-25 64 1-21 71 20-25 6 7 4 72 1-18 91 15-25 110 14-25 197 12-25 394 24-25 395 1-10 425 3-24 453 20-25 454 1-25 455 1-25 456 1-25 457 1-25 460 6-25 461 1-11 461 18-25 462 1-25 498 1-3 501 19-24 527 4-11 The disputed portions of the testimony will be dealt with in categories according to similar subject matter. The following portions of testimony will remain because the specific time period referred to either cannot be ascertained from the testimony or is clearly prior to March 15, 2001: (1) page 45, lines 1-4; (2) page 53, lines 6-25; page 54, lines 1-25; page 55, lines 1-25; page 56, lines 1- 21 ; (3) page 56, lines 22-25; page 57, lines 1-25; page 58, lines 1-6; (4) page 58, lines 7-25; page -2- 59, lines 1-25 ; (5) page 60, lines 1-23; page 61, lines 2-20; (6) page 62, lines 1-25; page 63, lines 1-15; (7) page 65, lines 11-25; page 66, lines 1-25; (8) page 70, lines 17-25; page 71 , lines 1-14; (9) page 92, lines 1-14; (10) page 93, lines 1-23; (11) page 105, lines 10-11 ; (12) page 122, lines 13-16; (13) page 196, lines 12-25; page 197, lines 1-11 ; page 198, lines 8-25; page 199, lines 1- 16; (14) page 329, lines 20-25; page 330, lines 1-24; (15) page 338, lines 21-25; (16) page 348, lines 18-25; (17) page 350, lines 11-25; page 351 , lines 1-21 ; (18) page 381 , line 25; page 382, lines 1-23; (19) page 400, lines 15-25; page 401 , lines 1-25; page 402, lines 1-25; page.403, lines 1-25; page 404, lines 1-25; page 405, lines 1-25; page 406, lines 1-25; page 407, lines 1-25; page 408, lines 1-10; (20) page 408, lines 11-25; page 409, lines 1-25; page 410, lines 1-25; page 411 , lines 1-25; page 412, lines 1-25; page 413 , lines 1-25; page 414, lines 1-5; (21) page 414, lines 6- 25; page 415, lines 1-25; page 416, lines 10-13; (22) page 418, lines 15-25; page 419, lines 1-25; page 420, lines 1-25; page 421 , lines 1-25; page 422, lines 1-25; page 423 , lines 1-25; page 424, lines 1-25; page 425, lines 1-2, line 25; page 428, lines 12-25; page 429, lines 1-17; (23) page 434, lines 9-25; page 435, lines 1-9; (24) page 436, lines 10-25; page 437, lines 1-2; (25) page 439, lines 1-5; (26) page 458, lines 1-25; page 459, lines 1-25; page 460, lines 1-5; and (27) page 497, lines 21-25; page 499, lines 1-16. The following testimony is excluded from the record, and the reasoning for its exclusion is set forth following the description of the specific testimony: (1) The testimony at page 71 , lines 15-19, is stricken. That testimony refers to an evaluation conducted at the end of the 2000-2001 school year, which is necessarily after March 15, 2001. ,., -.)- (2) The testimony at page 122, lines 11-12 and lines 17-19, is stricken. The questions and answer found there concern the year 2002. (3) The testimony at page 198, lines 1-7, is stricken. It is a continuation of the testimony at page 197, lines 12-25, which the parties agreed should be excluded because it refers to the 2001-2002 school year. (4) The following testimony is excluded: page 340, lines 18-25; page 341 , lines 1-25; page 342, lines 1-25; page 343, lines 1-25; page 344, lines 1-25; page 345, lines 1-25; page 346, lines 1-25; page 347, lines 1-25; page 348, lines 1-17; page 349, lines 1-25; and page 350, lines 1-10. As set forth at page 329, lines 14-16, Justin Mercer graduated in 2002, making 2001-02 his senior year. English IV AP, the class Mr. Mercer took from Mrs. Brooks, is a senior class. Because Mr. Mercer's experiences in that class occurred during the 2001-02 school year, they were subsequent to March 15, 2001, and are stricken. (5) The testimony at page 379, lines 10-25; page 380, lines 1-25; page 381 , lines 1-24; page 382, lines 24-25; and page 383, lines 1-5, is cross-examination regarding Mr. Mercer's experience with Mrs. Brooks during the 2001-02 school year. See paragraph 4 above. It is stricken. (6) The testimony at page 395, lines 11-25, and page 396, lines 1-9, is redirect examination regarding the experiences of Mr. Mercer with Mrs. Brooks. See paragraphs 4 and 5 above. The testimony refers to evidence generated after March 15, 2001 , and is stricken. (7) The testimony at page 398, lines 8-25, and page 399, lines 1-9, involves Mr. Mercer's experiences with Mrs. Brooks during his senior year. See paragraphs 4-6 above. That testimony is stricken. -4- IT IS SO ORDERED this I :Z,~ay of September, 2002. -5- Wmwt!JJl:a UNITED ST A TES DISTRJCT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE ':'.~J!T?t2~~~~~ _P..!:.CEIVED SEP 2 7 2002 '  A OFFICEOF ~ ESEGREGATIOH MONITORING IN THE UNITED STATES DISTRICT COURI EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION     ., 1 .  -  - , . :3, .a-: . . ,-. - - ,-- LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL ;DISTRICT NO.1, ET AL 1v1R.S. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL DEFENDANTS INTER VEN ORS INTERVENORS MOTION FOR NEW TRIAL OR IN THE ALTERNATNE MOTION FOR RELIEF FROM JUDGMENT OR ORDER The Joshua Intervenors respectfully move the Court pursuant to Rule 59( e) to alter or amend the judgment entered herein on September 13, 2002 or in the alternative to provide relief pursuant to Rule 60 of the Federal Rules of Civil Procedure of the Judgment or Order herein. Robert Pressman, ass Bar No. 405900 22 Locust Avenue Lexington, MA 02421 (781) 862-1955 Jqhn W. Walker, AR Bar No. 64046 J9HN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 CERTIFICATE OF SERVICE . I hereby certi~ that a copy of the foregoi~g t~,~n sent lfif~d U.S . Mail, postage prepaid to the followmg counsel of record, on this ,;\u0026lt;_J oay of ~ , 2002: Mr. Christopher Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 ~- ,, V Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 1--'Ir. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-34 72 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-73 8 8 John W. Walker JOHN W. WALKER SHAWN CHILDS JOHN W. WALKER, P.A. ATTORNEY AT LAW 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 September 23, 2002 C : .S-le:,ll!, FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS SEP 2 4 2002 JAMES W. McCOR/vi,\\Ci( Cl.ERK By: ________ Ol!P\u0026lt;roll!NBEL ROBERT McHENRY, P.A. DONNA J. McHENRY 8210 HENDERSON ROAD LITILE ROCK, ARKANSAS 72210 PHONE: (501) 372-3425  FAX (501) 372-3428 EMAIL: mchenryd@swbell.net Honorable Judge William R. Wilson United States District Court 600 West Capitol, Suite 423 RECEIVED Little Rock, AR 72201 Re: LRSD v. PCSSD, et al. Case No. LR-C- 82-866 Dear Judge Wilson: SEP 2 4 2002 OFFICE OF DESEGREGATION MONliORIMG Today we filed a motion for reconsideration. We found several errors in it and wish to correct them. We are hand delivering a substituted Motion for Reconsideration to the Court. The substitute motion does not alter or modify the substance of the motion filed today. It has been hand delivered to Judge Ray, the Little Rock School District counsel, the ODM and other counsel. JWW:js Enclosure- Motion for Reconsideration cc: United States District Court Clerk All Counsel of Record ( ,ere~; / ~~t \\/John W. Walker RECEIVED SEP 2 4 2002 - OFACEOF IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS SEP 2 4 2002 DESEGREGATION MONITORING WESTERN DMSION JAMES W. McCOR'\" ACK By: ''\"''\"' , CLERK LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. l, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL DEP CLERK PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS JOSHUA INTERVENORS' MOTION FOR RECONSIDERATION The Joshua Intervenors respectfully request the Court to reconsider the following findings of fact and conclusions oflaw which it has reached. In making this request, Joshua has been time limited because of the exceeding length of the Court's Opinion and the fact that the Court has sought to address issues that were not the subject of the evidentiary presentation for which the Joshua Intervenors had the burden of proof Joshua notes that the subject of the hearings, as determined by the Honorable Susan Webber Wright, then presiding Judge of this case, was for Joshua to present the areas ofits greatest strength from among the various objections which Joshua had made to the Compliance Report of March 15, 2001. The Court did not indicate that she would allow Joshua to present evidence on matters other than those which were the subject of the hearing before the Court. We make this notation because the successor Court Judge, the Honorable William R. Wilson, has faulted Joshua for not presenting evidence beyond the issues -on which evidence was taken. Joshua also notes that there was no issue that Joshua assumed the 1 burden of proof upon with respect to Joshua's obligations and undertaking with respect to compliance. Joshua had no power to impose any particular compliance upon the school district. Furthermore, Judge Wright made it clear that the agreement between the State of Arkansas with respect to the loan forgiveness of the $20 million dollars which was loaned by the Arkansas Department of Education to the Little Rock School District was not to be the subject of these hearings. Her reasoning was that the matter was premature because all the parties to that agreement were not before the Court, Joshua had not signed off upon it and that it had nothing to do with whether or not Little Rock had substantially complied with meeting the requirements of the Revised Desegregation and Education Plan which the parties agreed upon in January of 1998. The Court has also addressed the issue of the involvement of the ODM with respect to the issues which were litigated before Judge Wright and Judge Wilson. The competence of the ODM, quality of the ODM reports, the budget of the ODM and the relationship between ODM and Judge Susan Webber Wright, were not before the Court in evidentiary form. Those matters had nothing to do with Joshua's burden of proof in demonstrating that the LRSD had not substantially complied with the obligation of the Revised Desegregation and Education Plan. Nor was the issue of overall counsel fees with respect to the duration of the litigation and the payments to lawyers, and the public perception of those fees a matter of evidence to be: . considered when Judge Wright formulated the issues. The issue of attorney's fees has no relevance to the issue of whether LRSD has substantially complied with its obligations. The Court, Judge Wilson, has recited histo,y regarding his perception of the fee event and made assumptions regarding those matters. In due respect to the Court, the assumptions are not valid and represent a predisposition which could only have come from previous attitudes regarding the 2 role of lawyers in this long standing case. The Joshua Intervenors were not informed at the time that this matter was reassigned to the Honorable William R. Wilson of the Court's negative attitude toward lawyers who were involved with and associated with this case. While Judge Wright may have had such attitudes, they were not expressed and do not form the basis for any judicial ruling. The attitude of the late Honorable Judge Henry Woods was well known. He disapproved of certain payments to certain counsel, i.e., counsel for Joshua and the legion of ,  I predecessor and associate counsel who were involved in this case when it was first filed as Aaron v. Cooper in 1956. The parties are entitled, we submit, to have facts found upon the record which means a record which is developed in open Court. The fee issue is particularly sensitive because the Court has proceeded to make assumptions regarding fees and costs. In doing so, the principal erroneous finding is that the Joshua counsel, including the Legal Defense Fund counsel, were paid more than $3,750,000 for their work between 1987 and the present time. Joshua requests that the Court either delete its references to payments to counsel or afford the issue to be revisited in a manner which establishes the fact .and does not further cloud public perception, a point to which the Court appears most sensitive. The Court also seems to disregard the role of Joshua because the Court makes no reference.to how Joshua became involved in this case in the first place and why it was necessary for the school district to seek an interdistrict remedy in the first place. Those matters were not before the Court and we submit should be excised from the Court's Opinion. It is important to note that the late Honorable Judge Henry Woods refused to allow the Joshua Intervenors to intervene in the first place. It was His ruling that the Black plaintiffs did not need their own advocate or representative because the Court would protect the interests of the Black children. That position was overturned by the Court of Appeals and from that point on, Joshua has been the real plaintiff seeking to validate and protect the Constitutional rights of African American children which the LRSD set out to accomplish through counsel who have since been discharged.1 With those points in the foreground and in context, Joshua respectfully asks the Court to reconsider its lengthy Memorandum Opinion of September 13, 2002 with respect to issues which were not before the Court or for which the Court may have made mistakes. 1. On page 2, the Court indicates that the Settlement Agreements of 1989 were to be implemented \"under the supervision of ... the Office of Desegregation Monitoring.\" We believe the terminology to be inappropriate because Judge Wright never entered an Order determining the ODM to be the supervisor of any district. Furthermore, there is no evidence that the ODM ever - performed in that role. 2. As stated preliminarily, Judge Wright required Joshua to develop the facts surrounding what Joshua believed were their strongest grounds for challenging the school district's request for release from Court supervision . The Cou1i did not afford LRSD the opportunity to establish its case because the burden of proof rested with the Joshua Intervenors. Accordingly, Joshua requests that any facts that were found beyond the submitted grounds identified as subject areas for evidentiary hearings should be excised. In this respect, there was no burden imposed upon Joshua to demonstrate its own actions or conduct and no party requested that Joshua make such a demonstration. Moreover, the Agreement did not call for such a demonstration. 1The record will reflect that the District hired Philip Kaplan, P.A. Hollingsworth, Janet Pulliam and their associates to pursue the interdistrict litigation which resulted in the 1989 Settlement Agreement but which Settlement Agreement was reached without those counsel. 4 3. The Court notes on page 7 the role of Judge Wright with respect to Her supervision of this overall case. The Court omits, however, reference to the fact that the LRSD filed a motion seeking to have Judge Wright recused from the case. Although she refused to recuse, her withdrawal made the recusal issues moot for purposes of appeal. The Court appears to have adopted LRSD's reasoning set fo11h in its motion for recusal when it addresses the role of the Office of Desegregation Monitoring. We believe that is inappropriate, with all deference to the Court, and we believe that it tends to denigrate the significance of Judge Wright's work in seeking to implement through use of the ODM the dictates of the 811 ' Circuit. 4. When the ground rules were set by Judge Wright, she indicated that the Joshua Intervenors should present \"noncumulative\" evidence regarding the areas which Joshua most strongly regarded from the among the many areas to which it objected. Page 7, footnote 12. By ruling that cumulative evidence would be disallowed, the Court narrowed the hearing time and the presentation of evidence. The focus of the Court was upon brevity and substance. The successor Court agreed to follow the procedure set forth by Judge Wright. 5. In footnote 15, page 9, the Court notes that this action was filed on November 30, 1982, but it later gives the impression that Joshua counsel have been involved in this case since that time. Joshua r,equests that the Court, if it must address the history at all again, acknowledge that Joshua did not participate before the Honorable Henry Woods in the liability phase of the case as it is now styled and it only intervened at the remedy stage in 1987. Although this matter is not the subject of the evidentiary hearings, the Court may make this correction by reference to the docket entries and by reference to the Court of Appeal's Decision which allowed Joshua to intervene for purposes of remedy. Joshua fw1her notes that the 1989 Settlement Agreement 5 effectively merged the captioned case with, inter ctlia, Clark v. The Board o(Education of the Little Rock School District. Clark was the continuation of Aaron v. Cooper. Accordingly, this is a 46 year old case rather than a 20 year old case because the liability rulings of Clark remained and because, despite the beliefs of the late Judge Bill Ove1ton, there was never a determination that the LRSD had achieved unitary status. 6. In footnote 30, page 16, the Comi indicates that the claims for relief and remedies differed from those being sought in Clark. Joshua requests that the Court clarify those differences for as Joshua reads Judge Woods' later Opinion, Judge Woods, himself, found the school districts to be faulted for both interdistrict and intradistrict violations of the rights of African American children and he determined that consolidation with a resulting desegregation plan for the consolidated district would be necessary. Judge Woods' appointment of Special Master Aubrey - McCutcheon is not mentioned. Mr. IVlcCutcheon made findings during the remedial process that the districts were continuing to implement their policies by engaging in practices which tended to discriminate against African American school children. We believe that if history is to be written it cannot be fair unless the myriad hearings and other developments before Mr. McCutcheon are placed into perspective. Mr. McCutcheon is a necessary connection to legacy of Judge Henry Woods who the C0urt acknowledges to be the Court's mentor. 7. In footnote 47, pages 26 and 27, the Court makes reference to the evolution of the ODM and its budget. That matter was not before the Court. While Judge Wright's approval of the ODM budget is a matter of public record, we believe the Court may wish to excise these figures because they are inaccurate. Joshua is aware that the ODM budget was never fully spent. Joshua submits that the Court may wish to readdress this issue also because Judge Wright 6 approved the budgets and the manner in which Your Honor treats the budget seems to be at least an implicit criticism of Judge Wright's actions and of the Court of Appeals for requiring the creation of the office in the first place. We submit that the ODM and its budget are not fair issues for the instant proceedings and that the Court's attitude regarding the merits of plaintiff's objections may be clouded by the belief expressed that too much money has been spent on the \"professional group.\" In making the request for the reconsideration on this point, we note that all  . ' ' of the governmental parties have resisted in one form or another the ODM activities. We also note that the Court may be signaling that it wants to end the role of the ODM as that role was established and created by the 81 h Circuit There is no evidentiary basis for doing that or for allowing that inference to publicly flow On many occasions, Judge Wright commended the ODM work as being useful, helpful and even impo1iant in helping the districts achieve desegregation - goals. 8. On page 38, the Court notes that on December 27, 1996, Judge Wright held that LRSD would benefit from a \"temporary hiatus\" from monitoring. We have searched the record and do not find that she ever lifted that Order. Accordingly, LRSD has not been monitored as contemplated since 1997. Instead, it has been in advisory position to the LRSD. The Court has to also note with reference to the budget of ODM which it set forth on page 27 that monitoring for LRSD when done by the ODM, a 35% cost for LRSD, would have been approximately $250,000 per year. There surely cannot be an inference that Joshua was to take over the role of ODM with respect to monitoring at a rate of approximately $49,000 per year, a point the Court refers to at least five times. (Pages 39, 42, 43, 88 and 90). 9. On page 3 8, the Court heads a discussion \"the perplexing final resolution of Joshua's 7 request for still more attorney's fees from LRSD.\" Joshua requests the Court excise this section for several reasons. First, it indicates a bias or hostility toward Joshua counsel. Second, it implies collusion between the lawyers. Third, it suggests that the terms of the Settlement were not made known to Judge Wright, a conclusion not supported by any evidence. Fourth, it complains unfairly that a matter on appeal should not be resolved by the parties. The Court criticizes an Agreement without evidence about, or without inquiring into, it. The implication that LRSD and Joshua entered into an attorney client relationship suggests professional misconduct on the part of the attorneys. Finally, there is nothing to indicate that for the monthly amount of $4,000+ Joshua's counsel agreed to undertake all the monitoring aspects, including the ODM's role, of LRSD's implementation of the plan. The Court takes issue with Joshua counsel's approved 1997 hourly rate of $250. Nonetheless, counsel has been awarded even greater fees than that as was - His Honor awarded greater fees while in private practice. Surely, the Court understood that Joshua did more than 16 hours per month in monitoring this case. There is no record to establish this fact, however, and if it is important for public perception or otherwise, Joshua is prepared to demonstrate the hundreds of meetings held with school district officials during the three year period; numerous meetings with the ODM; public confrontations during monitoring occasions where Joshua counsel were threatened with arrest and where because of the persistence and vigor ofJoshua' s monitoring, the district revised its policies. We, therefore, believe that it is important for the Court to address the issue by hearing, affording appropriate and reasonable time for developing the issues, or, that the matter be removed from the Court's Opinion because it is based only upon speculation and conjecture. Joshua notes here that the process requires lawyers. For instance, Steve Jones, representing the NLRSD and Sam Jones representing the PCSSD basically 8 sat in Court throughout these proceedings and were paid fees and costs while Joshua counsel have not been paid a dime. But the process affords the districts the right of counsel and the districts have had no reluctance in paying their counsel on a contemporaneous basis and they are not held to public or Court contempt for being paid. In page footnote 58, the Court \"guesses\" that all attorneys have been paid at least $8 _million dollars. A \"guess\" is inappropriate for a Court, we submit, when the facts are more easily I ascertainable and the facts establish that the payment for Joshua in 1990 represented payments for 34 years of work and costs during that time. There is no estimate for the amounts which the districts paid their counsel to forestall desegregation before 1990. On the other hand, this issue has already been addressed and we submit has no place in this Opinion because it does not contribute to the issues which the Court heard. Undersigned counsel Walker does not accept the - Court's conclusion that he has directly benefitted from the perpetuation of this case. On the other hand, the three districts have received almost one billion dollars from the State of Arkansas since 1990 because of the various actions undertaken by counsel. Careful inquiry by the Court would disclose that the annual desegregation amounts from the State to the three school districts is in the range of $50 million or more per year. Were this a contingent fee case, plaintiffs' counsel would have indeed benefitted. l 0. The Court makes reference on page 46 to the achievement disparity goals approved by the Court of Appeals as being unreachable citing the testimony ofDrs. Walburg and Armor which was given in 1996. That testimony came after the original Settlement Agreement in 1989 and then preceded the 1998 Settlement Agreement. Accordingly, whatever views Walburg, Armor and even Judge Wright had about the elimination of the achievement gap, the parties 9 agreed to address it in the manner set forth in the Plan. The Court's comments regarding _ Walburg and Armor are inapposite to the hearing which the Court held and should play no part in the Court's ruling. 11. On pages 4 7 and 48, the Court refers to the failure of objection by the ODM and Joshua to the Interim Compliance Report. There is no record basis for this, i.e. , no witness Jestified to this effect and there is no evidence that Joshua was silent at any time. The only evidence is that Joshua was continually involved and seeking to be involved in the devisation of policies and procedures and was continually meeting with district officials regarding compliance issues. See Court Exhibits 553 through 569. 12. On page 48, the Court chastises ODM for its report of disciplinary sanctions which was filed on June 14, 2000. The repo11 was made to Judge Wright before she relinquished her jurisdiction and before the March 15 report seeking release from Court supervision was filed by LRSD. She was aware and there are many cites in the record to reflect that ODM presented its report in such a way as to inform the district of the facts it found and to make recommendations regarding those facts within the context of discussions which followed subsequent to the submissions of the reports. Had Judge Wright found criticism with the ODM reports, we believe the Court was obliged to share those criticisms with the parties prior to LRSD having fil~d its report seeking relief from Court supervision. See pages 48 through 50. On page 49, the Court acknowledges that the March 15 report of the school district failed to adequately address the disproportionality of African American student discipline. The report is not evidence, as Mr: Chris Heller acknowledged. This failure by itself demonstrates that the issue of discipline was not ripe for objection or release at the time the report was made. If the data were not available and were not presented there would be no basis for an objection from Joshua regarding the matter. ODM should not be faulted, nor should Joshua, for failing to object to data which did not exist at the time. 13. On pages 52 through 54, the Court notes that Joshua did not present evidence or arguments that LRSD \"was not in substantial compliance with its obligations regarding faculty _and staff, student assignment, special education and related programs, parental involvement, and school construction and closing.\" The Court had previously instructed Joshua not to present any of that evidence. The Court now states that Joshua's failure to present any of that evidence \"requires a finding that they have abandoned those arguments.\" Joshua finds it incongruent for them not to be allowed \"to present any evidence on certain matters and upon compliance with a no evidence presentation then receive a finding that they abandoned their position. Surely, the Court will not hold it against Joshua when it did not present evidence that the Court refused to let in in the first place. 14. On page 58, the Court appears to chastise Joshua counsel for never raising a compliance issue under Section 8.2 of the Plan. The Plan did not require Joshua to raise the specific compliance issue in order for them to oppose release from Court supervision. Furthermore, as pointed out above, there was no place in this hearing on the issues as formulated for this issue to be addressed. Furthermore, there is much evidence that Joshua regularly brought matters of compliance to the attention of the school district administrators. See Court Exhibits 553-569. 15 . The Court interprets footnote 2 of the Revised Plan (Opinion page 60) as \"not\" being the intention of the parties to have the remediation goal fully achieved within three years. 11 Joshua's evidence did not say that it did. For Joshua's evidence was that certain goals were to have been fully met while others would be ongoing. Surely, the goal of remediation of achievement disparities would be ongoing but elimination of disparities in discipline need not be, for example . . The Court makes an assumption regarding the reason for this footnote. There is no basis for the assumption from the record. 16. In footnote 67, page 60, the Court seems to be uncomfortable with the practical~ty of I the goals in the 1990 Plan regarding achievement disparities. Judge Wright also had some discomfort with that goal as previously noted but the achievement goals were agreed to and, contrary to the opinion of the Court, they must be implemented. The question is not whether they should have been agreed to by the LRSD, for they were, but whether they must deliver on those goals or promises. There is a presumption that there is a correlation between student achievement and money expenditures by school districts. Twel ve years after the money began to flow and between one half billion and a billion doll ars more spent in this district than which otherwise would have been spent, the achievement disparities remain. The only conclusion to be drawn is that the substantial monies expended were not used for the purpose of remediating achievement disparities between African American and white students. The beneficiaries of the monies have primarily been white students who have seen their achievement rise in ways to cause the gap to remain if not increase between and their still less fortunate brethren. 17. Beginning on_page 63 , the Court makes an analysis regarding the \"Green factors .\" We submit that the Green factors do not apply to this Settlement Agreement and that those factors should be excised. The Court takes the position that LRSD went beyond what it was required to do and \"voluntarily\" assumed desegregation obligations. We submit that these were 12 not voluntarily entered into, they were the result of negotiation brought about by the strength of the Joshua litigation position. They constitute benefits to the class of minority children which were bargained for by their counsel. The district was not doing the children a favor; rather, it was meeting an obligation which has been unaddressed during the 46 years of this litigation. 18. On page 72, the CoUii emphasizes that LRSD has never been adjudicated to be a _\"constitutional violator.\" We ask that the Court reconsider that position if for no other reason than that the settlement did not address fault. The Court discusses Judge Overton's Opinion and makes reference to the appellate's decision affirming Judge Overton at 705 F.2d 265 . The Court of Appeals approved Judge Ovetion 's Decision because the Plan before the Court represented the school board's attempt to temporarily reorganize attendance patterns while the school board pursued longer ranged plans to ensure an integrated school system citing this case. In other words, had this case not been filed , the Court of Appeal's Decision arguably would have been otherwise. On page 74, the Court noted that LRSD operated under the 1990 Settlement Plan for 8 years,\" a long time.\" The Court fails to note that during that \"long time\" Judge Wright found considerable disenchantment with the manner of operation and even required the school board members to come to Court to hear the evidence on many occasions. The Court even found the school district to be in contempt during this time. The Court disregards that history and seeks to demonstrate that LRSD has been a model of compliance during the Judge Wright years. That simply is not the case. This Court recognized as much on pages 30-32 of its own Opinion. The Court is requested to explain on the one hand the findings of Judge Wright and on the other hand its compliments of the district for these 8 years. 19. On pages 77 through 8 5, the Court appears to take issue with the concept that LRSD 13 .e specifically agreed to narrow the achievement gap between African American and other students. This lead the Court to impose an obligation upon Joshua to demonstrate that minority student achievement was a vestige of de jure desegregation. The Court thus imposed a liability concept upon Joshua during the hearing without any notice and without any cause. The Settlement Agreement is a remedy and as such may address issues other than those for which there has been a specific violation. But when the Settlement Agreement is approved by the Court it becomes the law of the case and the parties do not have to readdress at each hearing the underlying basis for the remedy being provided. 20. On page 87, the Court makes a finding of fact (No. 3) that Joshua did not pursue the compliance issues by use of the correct procedures before objecting to the report as a whole. As stated before, Joshua was not obliged under the plan to do so. 21. In addressing the fii1dings of fact pages 87 through 160, the Court appears to have adopted the LRSD's proposed findings. While the Court has great discretion, we make the following notations inter alia: a) on page 87, the Court speculates regarding resolution between Joshua and the school districts; b) the Court speculates that Dr. Lacey would take appropriate action if she perceived any race based treatment despite the absence of any record of her past actions on this issue, page 93; c) on page 94, the Cou11 found that since 1989, LRSD had a good record of acting in good faith (see paragraph 18 supra); d) on page 96, the Court accepted the \"belief' by Dr. Linda Watson that both Joshua 14 and ODM were provided with copies of a compliance plan and did not require any evidence; e) on page 96, the Coui1 without any record basis, concluded that Joshua counsel and staff have free access to LRSD's offices and schools and routinely received copies of any requested documents; f) on page 100, the Court excuses the district 's failure in excluding Joshua from planning and other meetings that the district had regarding compliance; g) on pages 103 through I 07, the Court does not address the elimination of disparities as being intended by the Plan; rather, the Court addresses overall reduction in suspensions where the racial disparities remain; h) on page 106, the advisory ODM Report is criticized by His Honor with respect to discipline but Judge Wright did not make the same criticism. Had she done so, a duty to address the issue would have been created; i) on page 109 a \"suspension index\" was created without any explanation (see finding 30), i.e. no witness explained it. The Court accepted the calculation by LRSD that there was no diminishing of disparity in discipline between 1997 and 200.0; j) the Court on page 110 imposed upon Joshua a burden to prove that disproportionality in discipline was a result ofracial discrimination. Joshua submits that that is the wrong legal standard to be applied under the law of this case. The issue is relie( not causation; k) on page 111, the Court disregarded the incidents of discrimination presented in 15 discipline. (See footnote 108) In doing so, the Court disregarded the admonition by Judge Wright not to present cumulative evidence regarding any matter and then held that the presented incidents were too \"isolated\" to allow judgment regarding the entire school system; I) on page 112, the Court may wish to reconsider the word \"probable\" in finding 38 in discussing the testimony of Dr. Watson. A review of her testimony establishes that \"environmental factors may be\" - not \"probably were\" the explanation for racial disproportionality; m) on page 113, the Cowi notes that Dr. Watson indicates that African American teachers suspended African American students more than white teachers. That appears to be a finding of racial treatment by African American teachers toward African American students. This establishes continuation of systematic discrimination toward African American students as well as perpetuation of disparities; n) on page 115, at footnotes l I l-112, the Court seems to condone disparities in sports activities by noting on page 116 that students tend to gravitate toward sports that they have grown up playing. That in itself we submit is racial)' .e., . whites-golf, tennis, soccer; blacks - football, basketball and track; o) on pages 116-117, in addressing the testimony of Ray Gillespie, the Court does not address the inferences to be taken when white coaches publicly mistreat Black athletes nor the reasonable perceptions which are influenced by those actions; p) on page 118, the Court in finding 9, accepts a \"means\" test for participation in 16 extra-curricular activities but this flies in face of the reality that most African American children in the .LRSD - in contrast to its white students- cannot meet the \"means\" tests imposed; q) with respect to advanced placement courses, the district has increased the enrollment of white students to a point to where the preexisting disparity has been extended. The programs undertaken by the district which are cited by the Co1;1rt r) ' are minuscule. For example (SMART involved a summer number of 200 pupils and Teachers of Color could only involve six teachers per year in being prepared for AP. This program was sta11ed in January, 2001, less than two months before the R;eport herein); the Court disregarded the testimony of Jason Mercer who presented multiple incidents of unfair treatment at \"famed\" Little Rock Central High Scho?l and the Court entirely disregarded the testimony regarding of parent Romona Horton's travails regarding her precocious children who were also enrolled at Little Rock Central High School; s) the Court accepts a \"means\" test for participation in the University Studies Program despite the obvious conclusion that it will disqualify the great preponderance (90%) of African American students who attend Hall High School. The Court also concluded that in one instance, LRSD solicited a private donation to pay tuition for an African American student to take a course offered under the University Studies Program. The testimony does not identify that the race of that student. The Court is requested to correct this finding; 17 t) with respe.ct to counseling services, finding no. 24, page 133, the Court may wish to revisit this finding because it seems at odds with Ms. Watson's testimony; u) with respect to academic achievement, the Court notes the obligation of the LRSD to be to approve the academic achievement of African American students. The issue is not simply to improve the achievement of African American students, rather, it is to bring their achievement levels to a range within reasonably proximity of the achievement levels of white and other students; v) with respect to page 146, finding no. 16, there is no evidence of what Joshua counsel \"knew.\" Indeed, the 8th Circuit said that the parties should not retreat from the concept of eliminating the achievement gap; and w) on page 114, finding 18, the Court again speculates regarding the loan provision forgiveness by the State of Arkansas toward LRSD. The Court then goes ahead and gives L.RSD two more years in order to comply with the State agreement without there being joinder o( or a hearing upon the issue. The Court faults Joshua for not raising that issue but fails to acknowledge that when it was raised by Joshua, Judge Wright chose not to address it for the reasons set forth on pages 1 and 2, supra. This finding was not made upon any evidence regarding 'the Joshua objections to LRSD's Motion for Release from Court Supervision. CONCLUSION The Joshua Intervenors respectfully submit that there are compelling reasons for the Court to revisit the record in order to determine whether the Court's Findings of Fact and Conclusions of Law are supported by the evidence presented during the hearings before Judge Wright and His 18 Honor. We also note that it is appropriate for the Court to again consider the context of the evidentiary presentations and withdraw its conclusions regarding those areas of compliance that the Court did not allow evidence to be developed regarding. t~ u.,;,~f1 .2-9-\u0026lt;k~,aa ~ ,,., l ; ~11,i/I Robert Pressman, Mass Bar No .. 4(6,5 00 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted, J~\"'Walker, AR Bar No. 64046 J W. WALKER, P.A. l 723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Attorney at Law Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207 (501) 663-9900 19 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been se~-Mail, postage prepaid to the following counsel of record, on this \"!};z_ day of . , 2002: Mr. Christopher Heller Mr. Dennis R. Hansen ERIDAY, ELDREDGE \u0026amp; CLARK Office of the Attorney General 400 W. Capitol, Suite 2200 323 Center Street Little Rock, Arkansas 72201 200 Tower Building Ms: Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; IBNNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 20 Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 173 88 Little Rock, Arkansas 72222-7388 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED SEP 3 O 2002 OFFICE OF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF . v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. l, et al. DEFENDANTS NOTICE OF FILING In accordance with the Courts Order of December l 0. 199.3. the Arkansas Department of Education hereby gives notice of the filing of ADEs l'rojcct Manugcrncnt Tool for September 2002. Respectfully Submitted. MARK PRYOR Attorney General DENNIS R. I IANSEN. # 97225 Chief Deputy Attorney General 323 Center Street, Suite 1100 Little Rock. Arkansas 7220 I (501) 682-2586 Attorney for Arkansas Department of' Ed ucation CERTIFICATE OF SERVlCE L Dennis R. Hansen, certify that on September 27. 2002. I caused the foregoing document to be served by depositing a copy in the United States mail. postage prepaid. addressed to each of the following: Mr. M. Samuel Jones, 1II Wright, Lindsey \u0026amp; Jennings 200 W. Capitol , Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. I 723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Attorney at Law P.O. Box 17388 Little Rock. AR 72222-7388 Mr. Christopher 1-leller Friday. Eldredge \u0026amp; Clark 400 W. Capitol. Suite 2000 Little Rock. AR 72201 -3493 Mr. Stephen W. Jcmc'.) .lack. I ,yon \u0026amp; .Jones 425 W. Cnpilol , Suite 3-t00 Little Rock. /\\ R 7220 I Ms. Ann Marshall One Union National Plaza 124 West Capitol , Suite 1895 Little Rock. AR 7220 I Dennis R. Hansen    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. NO.4:82CV00866 WRW/JRT PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED JUL 5 - 2002 OFFICE OF DESEGREGATION MONITORING ORDER AUG O 2 2002 PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The parties appeared before the Court by telephone in the absence of a court reporter on August 1, 2002 at 11 : 15 a.m. at which time the Court considered, upon the Joshua Intervenors' request, concerns they had with respect to Plaintiff LRSD's Motion to Strike. After hearing the position of the parties' counsel regarding the matter, the Court determined that the Plaintiff would have unit! August 9, 2002 in which to designate the specific testimony in the record which it wishes to have stricken, and that the Joshua Intervenors would have until Wednesday, August 14, 2002 at THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE ,~.~vri fUi 58 ANO/O~RCP .. ,,~~ -~ .P..2::::... BY -7-~r---~..c__:=- - UNITED ST A TES DISTRICT JUDGE 656 RECEIVFD IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION AUG 1 .') 2002 OFFICE Of DlSEGMGATIOH ii.HuHlfu,.G LITTLE ROCK SCHOOL DISTRICT PLAINTIFF LR-C-82-866 ,,co RECE\\v t ,M) V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL DEFENDANTS INTERVENORS INTERVENORS PLAINTIFF'S DESIGNATION OF TESTIMONY TO BE STRICKEN Plaintiff Little Rock School District (\"LRSD\") hereby designates the following testimony to be stricken from the record for the reasons set forth in the LRSD's Motion to Strike and accompanying brief: WITNESS PAGE LINES EXPLANATION C. Norman 45 1-25 Concerns 2001-02 curriculum audit dated March 2002 (CX 785). C. Norman 46 1-12 Same as above. C. Norman 53 6-25 Complaints about Pickering occurred during the 2001-02 school year (See Testimony of Chris Payne). C. Norman 54 1-25 Same as above. C. Norman 55 1-25 Same as above. C. Norman 56 1-25 Same as above. C. Norman 57 1-25 Same as above C. Norman 58 1-25 Complaints about Norman by the BCC occurred during the 2001-02 school year (See Norman, p. 71-72). C. Norman 59 1-25 Complaints about Pickering and about Norman by the BCC occurred during the 2001-02 school year. WITNESS PAGE LINES EXPLANATION C. Norman 60 1-25 Complaints about Rutherford occurred during the 2001-02 school year (See testimony of Avis and D.J. Thames). C. Norman 61 1-20 Same as above. C. Norman 62 1-25 BCC's support of Ross and Klais occurrred during the 2001-02 school year. C. Norman 63 1-25 BCC action against Norman and disciplinary action against Rutherford occurred during the 2001-02 school year. C. Norman 64 1-21 Rutherford disciplinary action occurred during 2001-02 school year. C. Norman 65 11-25 Teacher refusal to give recommendation occurred during 2001-02 school year (See testimony of Chris Payne). C. Norman 66 1-25 Same as above. C. Norman 70 17-25 BCC action against Mr. Norman occurred during the 2001-02 school year. C. Norman 71 1-25 Same as above. C. Norman 72 1-18 Same as above. C. Norman 91 15-25 Cross concerning Rutherford. 1 C. Norman 92 1-14 Cross concerning BCC.2 C. Norman 92 8-23 Redirect concerning Rutherford. C. Norman 93 1-14 Concerns Chris Payne and 2001-02 school year. P. Watson 105 10-11 Concerns 2001-02 school year. P. Watson 110 14-25 Concerns 2002-03 school year. P. Watson 122 11-19 Concerns 2001-02 school year (seep. 105) M. Faucette 196 12-25 Concerns 2001-02 school year (seep. 197, line 13) 1 Plaintiffs designation of cross-examination testimony is contingent upon the direct examination being stricken. If the designated direct testimony is not stricken, Plaintiff does not want the cross-examination testimony stricken. 2See Footnote 1. 2 WITNESS PAGE LINES EXPLANATION M.Faucette 197 1-25 Same as above. M. Faucette 198 1-25 Same as above. M.Faucette 199 116 Same as above. J. Mercer 329 20-25 Concerns 2001-02 school year (seep. 329, lines 14-16) J. Mercer 330 1-24 Same as above. J. Mercer 338 21-25 Concerns his experience during his senior year, 2001-02, in Brooks' English IV-AP class. J. Mercer 340 18-25 Same as above. J. Mercer 341 1-25 Same as above. J. Mercer 342 1-25 Same as above. J. Mercer 343 1-25 Same as above. J. Mercer 344 1-25 Same as above. J. Mercer 345 1-25 Same as above. J. Mercer 346 1-25 Same as above. J. Mercer 347 1-25 Same as above. J. Mercer 347 1-25 Same as above. J. Mercer 348 1-25 Same as above. J. Mercer 349 1-25 Same as above. J. Mercer 350 1-10 Same as above. J. Mercer 350 11-25 Concerns his experience during his senior year, 2001-02, in Art History-AP. J. Mercer 351 1-21 Same as above. J. Mercer 379 10-25 Cross regarding Brooks. 3 J. Mercer 380 1-25 Same as above. J. Mercer 381 1-25 Same as above. J. Mercer 382 1-25 Same as above. 3See Footnote 1. 3 WITNESS J. Mercer J. Mercer J. Mercer J. Mercer J. Mercer J. Mercer -J. Mercer C.Payne C. Payne C. Payne C. Payne C. Payne C. Payne C.Payne C.Payne C. Payne C.Payne C.Payne C. Payne C.Payne C. Payne C.Payne C. Payne C.Payne 4See Footnote 1. 5See Footnote 1. PAGE 383 394 395 395 396 398 399 400 401 402 403 404 405 406 407 408 408 409 410 411 412 413 414 414 LINES EXPLANATION 1-5 Same as above. 24-25 Concerns his graduation in 2002. 1-10 Same as above. 11-25 Redirect regarding Brooks. 1-9 Same as above. 8-25 Re-cross regarding Brooks.4 1-9 Same as above. 15-25 Concerns his senior year, 2001-02. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-10 Same as above. 11-25 Cross concerning his senior year, 2001- 02.5 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-5 Same as above. 6-25 Redirect concerning his senior year, 2001- 02. 4 WITNESS C. Payne C. Payne D. Thames D. Thames D. Thames D. Thames -D. Thames D. Thames D. Thames D. Thames D. Thames D. Thames D. Thames D. Thames D. Thames D. Thames D. Thames P. Mercer P. Mercer P. Mercer P. Mercer P. Mercer P. Mercer 6See Footnote 1. 7See Footnote 1. PAGE 415 416 418 419 420 421 422 423 424 425 428 429 434 435 436 437 439 453 454 455 456 457 458 LINES EXPLANATION 1-25 Same as above. 10-13 Same as above. 15-25 Concerns his senior year, 2001-02. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 12-25 Same as above. 1-17 Same as above. 9-25 Cross regarding Beta Club and National Honor Society.6 1-9 Same as above. 10-25 Cross regarding Pickering. 7 1-2 Same as above. 1-5 Redirect regarding Beta Club. 20-25 Cross regarding Brooks. 8 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 1-25 Same as above. 8See Footnote 1. This cross relates to Justin Mercer's testimony. Pam Mercer only discussed the issue generally without specific reference to Brooks, and Plaintiff has not designated that testimony to be stricken. 5 WITNESS PAGE LINES EXPLANATION P. Mercer 459 1-25 Same as above. P. Mercer 460 1-25 Same as above. P. Mercer 461 1-11 Same as above. P. Mercer 461 18-25 Redirect regarding Brooks. P. Mercer 462 1-25 Redirect regarding Brooks. J. Carter 497 21-25 Concerns 2001-02 curriculum audit dated March 2002 (CX 785). J. Carter 498 1-3 Same as above. J. Carter 499 1-16 Same as above. The audit led to recommended staff cuts to be implemented during the 2002-03 school year (seep. 527). J. Carter 501 19-24 Same as above. J. Carter 527 4-11 Cross regarding staff cuts.9 WHEREFORE, the LRSD prays that the testimony designated herein be stricken from the record for the reasons set forth in its Motion to Strike and accompanying brief. 9See Footnote 1. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Christopher Heller (#81083) John C. Fendley, Jr. (#92182) FRIDAY, ELDREDGE \u0026amp; CLARK Regions Center, Suite 2000 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 BY:~t.:hJ! 2ft John C. Fendley, Jr. 6 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by U.S. mail on August 9, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 (VIA FAX and MAIL) Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 F:\\HOME\\FENDLEY\\LRSD 200 I \\des-unitary-mot-strike-designations. wpd ~e.;JrJk~ c.Fendley, Jr. ' 7 IN THE UNITED STATES DISTRICT COURT EASTER.t\"J DISTRICT OF ARK.i-u\"'\\JSAS WESTER.t\"J DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICTNO.l, ET AL MRS. LORENE JOSHUA, ET AL KATHERJNE K.t\"JIGHT, ET AL RECEIVED AUG 1 5 2002 OFACE OF DESEGREGATION MONITORING FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS AUG 14 2002 J 8 AMES W. McCORM.A.CK, CLERK y --------:D=E=P-CL-E_R_K PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS JOSHUA INTERVENORS' RESPONSE TO PLAINTIFF'S DESIGNATION OF TESTIMONY TO BE STRICKEN The Joshua Intervenors respectfully respond to the plaintiffs designation of testimony to be - stricken. 45 No objection to lines 5-25 46 No objection to lines 1-12 53-57 Testimony should not be stricken; testimony is within time frame; this is supported by pp. 56-57, 426-27; discussion continues regarding when Norman first came to McClellan in 1999 58-59 No date; testimony should stay in; the LRSD should have addressed any problem in cross-examination 60 60 61 61 No date; testimony should stay in No objection to lines 24-25 No objection to line 1 Lines 2-20; do not strike; student vvitnesses were on team during plan; no date -1- - 62 63 64 65 66 70 71 72 91 92 92 93 105 110 122 196 197 198 No date; refers to testimony of Ms. Thames who discusses Ross during DJ's 10th grade year; do not strike No objections to lines 16-2 5; 1-15 do not strike; no date No objection to lines 1-21 No date; testimony .should stay in; Governor school is necessarily before Sr. year Same as 65; do not strike No date; testimony should remain; inference that she would have staiied before 4th year Refers to 2000-01; no objection to lines 20-25 No objection to lines 1-18 No objection to lines 15-25 Lines 1-14; no date; testimony should stay in; this is cross examination; simply a general description of BCC doesn't relate to fact Lines 8-23; no reference to Rutherford on p. 92; typographical error' No reference to Cluis Payne on this page Testimony within time period No objection to lines 14-25 being disregarded This is cross examination mentioning SCEME not being active this year; this testimony stays because it refers to testimony given earlier Relates to testimony within time period; this took place during 2000-2001 school year; signing up for course to be taken during next year No objection to lines 12-25; other testimony should remain; always refers to Dr. Faucette full time as a teacher at Central Testimony should remain because it refers to last year (during relevant time period); 'Assuming that the Plaintiff was referring to page 93, lines 8-23, no objection -2- - 199 329 330 338 340-350 course was clearly taught during 2000-2001 school year; offerings took place in the Spring prior to March 15, 2001 Same as page 198 No date; testimony should remain Statement of background fact information - this includes Jr. year Background information; establishes she was white AP teacher The LRSD's objection should be rejected; had the district made timely objections as contemplated by the rules, Intervenors would have had the opport1mity to consider offering other evidence 3 5 0, lines 1 1-1 5 351 379-380 381 382-383 394 395 395-99 400 401-408 409 410 411-415 416 No date; testimony should remain Same caveat as 340-350 Inference that students over the years, including during plan years, talked about Ms. Brooks Only information on 2001 test should be stricken No objection to lines 24-25 No objection to lines 1-10 Mixed evidence (includes years during plan); deny objection Background information No date; testimony should remain; identifies pattern with Coach Rutherford (407) No date; remain in No date; testimony should remain No date; testimony should remain Background information -, -.)- 418 419 420 421 422 424 425 428 429 434 435 436 437 439 453 454-457 458 459 No date; testimony should remain; this deals with cotmseling; plaintiff utilizes presumption that counselors only deal vvith students their Sr. year regarding college Three years necessarily go back to 1999; used during 3 years No date; testimony should remain; (plaintiff argues in effect that Rutherford did this DJ's Sr. year only) Lines 17-18 clearly include the relevant time period; no way to asse11 all evidence omside period; testimony should remain No date; testimony should remain; reference to earlier years No date; testimony should remain; reference to earlier years (10th \u0026amp; 1 l th grades) Same as 423 Lines 1-2; no date; should remain; line 25 , clearly related to proper period No date; testimony should remain Same as 428; refer pp. to 426-27; counselor told him while in J.O'h grade not to go into Pickering's class; he got out in 11 th grade; this occurred during relevant time period No date; testimony should remain Same as 434 See response top. 429; do not strike Background information; description of counselor No date; testimony should remain No objection to lines 20-25 No objection Testimony within relevant time period Same as 458 -4- - 460 461 Same as above except no objection to lines 6-25 No objection to lines 1-11 461 No objection to lines 18-25 462 No objection 1-25 497 Should remain; audit report confirmed his view 498 No objection to lines 1-3 499 501 Declining enrollment based upon testimony of Carter No objection to lines -19-24 527, lines 4-11 No objection to lines 4-11 Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 JolmiW. Walker. AR Bar N~. 64046 I/ ~ JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, Arkansas 72206 (501) 3 7 4-3 758 (501) 374-4187 (Fax) -5- CERTIFICATE OF SERVICE I hereby ce1iify that a copy of the foregoing t1'ts been senroY/ax and U.S. Mail, postage prepaid to the following counsel ofrecord, on this ~A,- day of ( ,Ll-{t, , 2002: Mr. Clay Fendley FRlDA Y, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRJGHT, LINDSEY \u0026amp; JENNINGS 2200 Wo1ihen Bank Building 200 West Capitol Little Rock, Arkansas 7220 l - /\\ I ) L/ Mr. Dermis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A . 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROA CHELL LAW FIFJv1 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Robert Pressman -6- u::.~~ (1- . I,! -~ ll ,,,.,., ti\"\"\u0026gt; Us ~-- -, v1 ~ i::AsTE. . Ol~!Rity~ ,!._C\u0026amp;.~ IN THE UNITED STATES DISTRICT COURT Rr.,o,.::.TRicr ~#~SAs EASTER.l\"J DISTRICT OF ARKANSAS AUG 7 p 2nn-, WESTER.i\"J DIVISION JAMES 1 ~ v J,;L By: IV. ,\\lfcc0Rr~1A'\"'1r ,..,. - \\..o \\, vLc:i~r( LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 vVRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICTN0.1 , ET Al RECEIVED DEFENDANTS INTER VEN ORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL AUG 1 9 2002 OFFICEOF DESEGREGATION MONITORING MOTION FOR ADDITIONAL TIME TO FILE RESPONSE The Joshua Intervenors respectfully request an extension 1mtil August 26, 2002 to file their Proposed Findings of Fact and lugument in Opposition to the LRSD's Request for Unitary Stah1s Regarding the Plan Sections addressed in the hearings conducted from July 22 to July 24, 2002. The grounds for this motion are as follows: 1) Under the schedule established by the Court, the parties had from July 25, 2002 until August 19, 2002 (26 days) to file their responses. 2) The Joshua Intervenors did not receive the transcript of the hearing until the 13th day of this period, on August 6,2002, at approximately 5 :30 p.m. The transcript contains almost all of the evidence offered dming the hearings. 3) In view of the timing of receipt of the transcript, additional time is necessary to address the issues presented in this matter, issues of the highest importance for the City of Little Rock and its residents. 4) The requested extension would cause no apparent harm to the LRSD and the District's counsel have stated that they do not object to the Coun' s granting the requested extension. \\VHEREFORE, the Joshua Intervenors respectfully request that the Court extend the time for their submission in this matter until not later than August '.:6, 2002. Riob~-iPressma'r{,' Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 ~0\"~\\v~ Walker, AR Bar No. 64046 ' / ,1OHNW. WALKER,P.A. -1723 Broadway Little Rocle Arkansas 7'.2206 (501) 374-3 758 (501) 374-4187 (Fax) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing ha~ been sent) ?Y fax and U.S. Mail, postage prepaid to the following counsel of record, on th.is / t., day of //t,. i . 2002: , C  / \\ Ivfr. Chris Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201  Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 . / j Mr. De1m1s R. H.a:risen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-34 72 Mr. Richard Roachell ROA CHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Jolu{W. Walker /  RECEIVED AUG 2 0 2002 A OFFICE.OF ~ ESEGREGATIOU,WONITORING IN THE UNITED STATES DISTRICT COURT EASTERN DISTRJCT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4: 82CV00866-WR W /JTR PULASKI COUNTY SPECIAL SCHOOL DISTRJCTNO. 1, et al MRS. LORENE JOSHUA, et al KATHERINE KNIGHT, et al ORDER ;~~E AUG 1 9 2002 PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS Joshua's motion for an extension ohime to file proposed findings of fact and conclusions of law (filed today, August 16) is denied. While a short post-trial brief is certainly acceptable, I did not ask the parties for briefs. So that the preparation of a brief will not interfere with the timely filing of proposed findings of fact and conclusions of law, the brief can be filed by 11 :00 a.m. on Monday, August 26, 2002. I feel certain that I made it quite clear, that absent highly unusual circumstances, the August 19 deadline would not be extended. In fact, I believe I backed up the deadline from 5 :00 p.m. on August 19 to 11 :00 a.m. I hate to ruin this weekend for counsel, but this is my ruling-request denied, except as it pertains to a post-trial brief. IT IS SO ORDERED this J61h day of August, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE V\\/i lf/RU1-ft 58 A~D/OR~. 7FR9CP ON t l1L!? ?-- . bY__7, ,~c......,,..;....,....- ~\u0026lt;L - 660 u.sfo1{Jm~CQRT IN THE UNITED STATES DISTRJCT COURT EASTERN DISTRICT ARKANSAS EASTERN DISTRJCT OF ARKANSAS AUG r 9 2002 WESTERN DIVISION LITTLE ROCK SCHOOL DISTRJCT vs. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. I, et al MRS. LORENE JOSHUA, et al KATHERJNE KNIGHT, et al RECEIVED AUG 2 O 2002 OFFICE OF DESEGREGATION MONITORING ORDER DEFENDANTS INTER VEN ORS INTER VEN ORS Before the Court is the request of the Magnet Review Committee (\"MRC\") for approval of the interdistrict magnet schools' final budget for the 2001-2002 school year. Also before the Court is the MRC's request for approval of the interdistrict magnet schools' proposed budget for the 2002- 2003 school year. The MRC communicated both budgets to the Court in a letter dated July 31 , 2002 ( attached). The Court will allow the parties ten days from the date of entry of this Order to object to the MRC' s final budget for 2001-2002. The Court will also allow the parties ten days from entry of this Order to object to the MRC's proposed budget for 2002-2003. Ifno objections are filed within the time allowed, the Court will enter an Order approving the final budget for the 2001-2002 school year. If there are no objections, the Court will also enter an Order approving the MRC's proposed budget for 2002-2003 in anticipation that the MRC will file its final (actual) budget for the Court's review at the appropriate time. IT IS SO ORDERED this J.'i_ day of Augus~~~ - - THIS DOCUMENT ENTERED ON __j .Y-------~---;----~-- ---7\"\"--'--~- ---===-=-- DOCKET SHEET IN COMPLIANCE UNMED :AJp \"''\" - CT JUDGE W!L~RUyE 58ANO/OR~~ /\" , m~1Lf~,- BY~7,,c.~_.....- , 6 6 1 Magnet Review Committee 1920 North Main. Street, Suite 1 01  North Little Rock, Arkansas 72114 (501) 758-0156 {Phone}  (501) 758-5366 {Fax}  magnet@magnetschool.com {E-mail} July 31 , 2002 The Honorable William R. Wilson, Jr. Judge, U. S. District Court Eastern District of Arkansas 600 West Capitol Little Rock, AR 72201 Dear Judge Wilson: At its July 16, 2002 regular meeting, the Magnet Review Committee listened to a presentation by Little Rock School District and then discussed the interdistrict magnet schools' budget information for the Stipulation magnet schools. The presentation included the final figures for the 2001-02 budget, as well as the proposed budget for the 2002-03 school year. The information is contained in the attachment (Draft 1). No vote was taken at the meeting, and Magnet Review Committee representatives provided the information to their party for vote. A telephone poll was then taken, and the budgets were approved by the Magnet Review Committee by all parties with the exception of the Joshua Intervenors whose representative was hospitalized during budget discussions. FINAL 2001-2002 STIPULATED ORIGINAL MAGNET SCHOOLS BUDGET The total amount originally budgeted, $24,802,473.00, is based on a per-pupil expenditure of $6,473.00, calculated from the three quarter average enrollment of 3,831.65 students. Actual attendance records of 3,809.89 students set the final budget figure at $24,621,107.00, and the final budget's per pupil expenditure reduced to $6,462.00, or $11.00 less per pupil than originally budgeted. This final budget reflects an increase of $612.00 per student over the 2000-2001 actual expenditures, and includes the first year of the two-year improvement plan which was approved by the Magnet Review Committee on June 5, 2001. This final 2001-2002 budget also reflects actual figures and takes into account the variables (teacher retirement and health insurance changes) that were uncertain when the proposed budget was submitted in July, 2001. Included in the Summary portion of the budget information are the cost breakdowns for each school district and the State during this time period. \"Pursue the Possibilities of ,Uagnet School Enrollment\" The Honorable William R. Wilson, Jr. -2- July 31 , 2002 PROPOSED 2002-2003 STIPULATED ORIGINAL MAGNET SCHOOLS BUDGET The total proposed budget for the 2002-2003 school year is $25,065,942.00, which results in a per-pupil expenditure of $6,579.00 and an increase of $117.00 over the 2001-2002 actual expenditures. The increase in the per pupil expenditure includes the costs for the second year of the two-year improvement plan for the Stipulation magnet schools which was approved by the Magnet Review Committee in their meeting on June 5, 2001. Since Little Rock School District is in their third year of teacher contracts, the salaries, fringe benefits, insurance and other employee variables have already been calculated into this proposed budget. Again. included in the Summary portion of Draft 1 are the cost breakdowns for each school district and the State. The Magnet Review Committee respectfully requests the Court's review and approval of the 2001-2002 :finalized budget in the amount of$24,621,107.00, with a per pupil expenditure of $6,462.00, as well as the proposed 2002-2003 budget, both attached herewith. The Magnet Review Committee is committed to maintaining the quality of the Stipulation magnet schools. We will continue to work with the host district as we exercise stringent oversight of the magnet schools' budget in an effort to achieve and ensure efficient management and cost containment to the greatest extent possible. Sincerely, Ll~LlJ?pldh ~di~ Mitchell,~~ Magnet Review Committee SM'DGC:sl Attachments: Actual 2001-2002 Original Magnet Schools Budget (Draft 1) Proposed 2002-2003 Original Magnet Schools Budget (Draft 1) cc: Ann Marshall, Federal Monitor - Office of Desegregation Monitoring CERTIFIED 01 Principal 6.0 $466,336 $466 ,336 6.0 $488,260 STAFF 02 Asst.Prin . 10.0 $596,703 $648,136 9.0 $538,289 03 Specialists 40.2 $1 ,792,248 $1,753,532 40.2 $1,745 ,253 04 Counselors 13.4 $596,823 $580,713 13.4 $634,117 05 Media Spec. 6.5 $296,379 $293,841 6.5 $305,577 06 Art-Perf./Prod . 3.0 $106 ,264 $108,116 3.0 $112,502 07 Music 0.0 $0 $0 0.0 $0 08 Foreign Lang. 0.0 $0 $0 0.0 $0 09 Vocational 7.6 $427,544 $432,970 7.6 $392,782 10 Special Education 9.2 $405 ,041 $396,336 9.2 $433 ,925 11 Gifted 5.4 $250,741 $250,731 5.4 $262,294 12 Classroom 191.8 $8,213 ,397 $8,313 ,748 191 .8 $8,639 ,729 13 Substitutes 0.0 $206,000 $238,047 0.0 $230,000 14 Other-Kindergarten 15.0 $616,631 $657,519 15.0 $658,501 TOTAL CERTIFIED SALARY 308.1 $13,974,107 $14 ,140,023 307.1 $14.441 ,229 SUPPORT 15 Secretaries 21.4 $603,031 $603,030 20.4 $538,805 STAFF 16 Nurses 6.0 $245,615 $226.301 6.0 $238,020 17 Custodians 30.0 $462,045 $469,891 30.0 $494,072 18 Information Services 1.0 $54,348 $54,766 1.0 $56,503 19 Paraprofessionals-Other 6.0 $180,971 $180,193 6.0 $184,840 20 Other-Aides 37.0 $414,622 $460,578 22.8 $439,521 21 Frinqe Benefits(20) xxlCi\u0026lt;xx;i\u0026lt;i( $3,964,711 $3,777,239 xxxxxxxk $4,209,662 TOTAL SUPPORT SALARY 101.4 $5,925,343 $5,771,997 86.1 $6,161,422 TOTAL (10-20) XXXXXX:l\u0026lt;ii' $19,899.450 $19 ,912.021 xxxxxxi6( $20,602.651 PURCHASED 22 Utilities xiooixxxii' $533,877 $484.737 xxxxiooo( $409,472 SERVICES 23 Travel xxxxxxxx' $40,600 $50,141 xxxxxxxi( $39.500 (30) 24 Maintenance Aqreements xxixi\u0026lt;xxi $0 $0 xxxi(iooo( $0 25 Other XXXXX~l( $219,556 $211,221 xxxxi6ocx $146,581 TOTAL (30) xxxxxioo( $794,033 $746,099 xXXJiicxxx $595.553 MATERIALS, 26 Principal's Office xx:\u0026amp;io\u0026amp;ii $2,000 $265 XXXi\u0026lt;i\u0026lt;*.x $1 ,200 SUPPLIES 27 Reoular Classroom xxxxio6o( $554,178 $561,699 xxxxx,~k $556.304 (40) 28 Media xxx:xx.i6oi: $44,100 $42,523 xxxxmot $49. 025 29 Other ~ : $240,368 $265,400 ;xx~; $256,463 TOTAL (40) ,- .. :--. -: -.- .-: 'XXJO\u0026lt;X)00t  $840,646 $869,887 'xxxioooo( $862,992 CAPITAL 30 Equipment xx~xxxk $1,340,925 $1,278.872 i\u0026lt;ioooooix: $1,079,371 OUTLAY 31 Buildinq Repair, etc. 'xxx:iooo6( $0 $0 XXJOQ\u0026lt;xxX $0 (50) 32 Other xi\u0026lt;xxi\u0026lt;xxX $0 $0 TOTAL (50) xxxxxxxx $1 ,340,925 $1,278,872 xxxiixxxi( $1 ,079,371 OTHER 33 Dues and Fees xxxxxxxx:  $18,400 $7,782 xxxxx\u0026gt;ii:xic $1 o,9oo (60) 34 Other :xxxxxioo{ $0 $0 xxxxxxxi( so TOTAL (60) xxxxxxxi $18 ,400 $7,782 xxxxxxxx $10,900 TOTAL (30-60) xxxxxioo( $2,994,004 $2,902,639 xxxxxioot $2,548 .816 TOTAL (10-60) 409.5 $22,893,454 $22,814,660 393.2 $23,151,467 TOTAL LINE ITEMS - (SECOND PAGE) xxxxxi6ot $1 ,909.289 $1,806,447 xxxxxxxX $1,914.474 xxxxxxxx: . . $24,802;743 $24,621,107 xxxxxxxx \u0026lt;\u0026lt; $25,065,942 Magnet8udget0203MAGBKOJ.xls summ~rv/H/UH i// :::::: 2001-02 2001-02 2002-03 Stipends $146,503 $62,736 $96,083 Other Objects $0 $0 $0 Indirect Costs $1,639 ,927 $1,630,271 $1 ,664,438 Vocational $32,800 $23,494 $32,800 Athletics $51,559 $51,532 $82,653 Gifted Proorams $500 $500 $500 Plant Services $32,000 $32,000 $32,000 Reading $500 $415 $500 Science $0 $0 $0 English $1 ,500 $1,500 $1,500 Special Education $4,000 $4,000 $4,000 xxxxxx xxxxxx Total Line Items $1 ,909,289 $1,806,447 $1,914,474 Per.Pupil'CostT 3rd Qtr. ADM or Proj. 3,831 .65 3,809.89 3,809.89 Total Costs $24,802,743 $24,621 ,107 $25,065,942 Fu~ding sv soiirce 2001-02 2001-02 2002-03 State of Arkansas $12,401 ,371 $12,309,755 $12,532,971 LRSO $7,778,140 $7,722,783 $7,860,679 PCSSD $3,013,533 $2,990,129 $3,045,512 NLRSD $1 ,609,698 $1 ,598 ,440 $1 ,626,780 Total Costs $24,802,743 $24,621,107 $25,065,942 MagnetBudget0203MAGBK03.xls ~Wi'r~1~~i?t~~m0m~17(PRf'sD),:::: 'i\\0t;:02\u0026lt; :. 01~02::c :: n: :n:01~02 :'  02,03\\  \u0026lt;\u0026gt;\u0026gt; 02.:as:::::::::: iET;' H \\Proposed :n :.:::JAdua1 :)ET:E) :  { LPf.i:fpose'd  \u0026lt; CERTIFIED 01 Principal 1.0 $ 78,368 $ 78,368 1.0 $ 82,856 STAFF 02 Asst. Prin. 1.0 $ 60 ,653 $ 60,653 1.0 $ 62,345 03 Specialists 7.0 $ 325,990 $ 314,857 7.0 $ 326,629 04 Counselors 2.0 $ 90,561 $ 92,869 2.0 $ 98,060 05 Media Spec. 1.0 $ 50,698 $ 32,178 1.0 $ 34,151 06 Art-Perf./Prod. 3.0 $ 106,264 $ 108.116 3.0 $ 112,502 07 Music 0.0 $0 $0 0.0 $0 08 Foreign Lang . 0.0 $0 $0 0.0 $0 09 Vocational 0.0 $0 $0 0.0 $0 10 Special Education 1.3 $ 104,959 $ 104,959 1.3 $ 107,932 11 Gifted 1.0 $ 47,078 $ 47,078 1.0 $ 48,389 12 Classroom 31 .6 $ 1,310,270 s 1,301,316 31.6 $ 1,449,702 13 Substitutes 0.0 $ 21,000 $ 33,493 0.0 $ 35,000 14 Other-Kindergarten 5.0 $ 167,761 $ 228,076 5.0 $ 209,935 TOTAL CERTIFIED SALARY 53 .9 $2.363 ,602 $2.401 .963 53 .9 $2,567,501 SUPPORT 15 Secretaries 2.0 $ 39,512 $ 38,583 2.0 $ 40,328 STAFF 16 Nurses 1.0 $ 40.205 $ 40.205 1.0 $ 41,318 17 Custodians 4.0 $ 65.834 $ 62.444 4.0 $ 67,078 18 Information Services 0.2 $ 9.058 $ 9.130 0.2 $ 9,419 19 Paraprofessionals-Other 0.0 $0 so 0.0 $0 20 Other-Aides 8.0 $ 97.920 $ 112,878 6.0 $ 111,922 21 Fringe Benefits(20) XXX)()(XJ\u0026lt;X S658.313 s 643 ,030  ~  $ 721 ,388 TOTAL SUPPORT SALARY 15.2 $9 10,842 $906.269 13.2 $991,453 TOTAL (10-20) ~  $3 ,274,444 $3,308,232 xx,dcxixxx $3,558,954  URCHASED 22 Utilities xx;iixxxxx: $ 70 ,544 $ 65 ,320 lxxxxx:boC: $ 65,379 SERVICES 23 Travel ~ $ 10,000 $ 4,688 x~ $ 10,000 (30) 24 Maintenance Agreements i\u0026amp;xfubJl $0 $0 ~~ $0 25 !Other .XJ0()()00(X. s 15.275 $ 23 .320 xxxXJ00ix $ 17.012 TOTAL (30) .iooooooo\u0026lt;i S95.819 $93.327 xxxxxxxl( $92.391 MATERIALS, 26 Princioal's Office xxxxxxi\u0026lt;.X $0 so X)()O(XXiO( $0 SUPPLIES 27 Regular Classroom i\u0026lt;)Ci()O(XXX $ 74.740 s 64 .777 xxxxxxxi( $ 77.236 (40) 28 Media io\u0026lt;xxxxi\u0026amp; $ 7.500 $ 6,160 xxxxxxxx $ 8,000 29 Other xxxxxxxx  $ 51.113 $ 48 .359 io6ooci:xX $ 23 ,250 TOTAL (40) liooixx:io\u0026amp; $133 .353 $119 ,296 xfuxxi\u0026lt;if $108 ,486 CAPITAL 30 Equipment XXX)(){XXX. $ 192.083 $ 189.148 xxxxxxi\u0026lt;it $ 374,000 OUTLAY 31 Building Repair, etc. xxxxxxxxi so so : ~ . $0 (50) 32 Other xxxxxxxx $0 so XXXXX)OO(' so TOTAL (50) xxxxxxxx $192.083 $189 ,148 xxxxx:xxx: $374.000 OTHER 33 Dues and Fees xxxi\u0026lt;xxxx . $ 2,500 $ 195 XXXXJ00()('  $ 2.500 (60) 34 Other :xxxxxxxxi so so xxxxxxxx  so TOTAL (60) :xxxiooooC:: S2.500 $195 xxxxxx,6( $2.500 TOTAL (30-60) xxxxxxxx  $423.755 S401 .966 xxxxioixx  $577.377 TOTAL (10-60) 69.1 $3 .698 .199 $3.710 .198 67 .1 $4,136.331 TOTAL LINE ITEMS - (SECOND PAGE) xxxx~xx: S272.051 S287,129 XXXJO\u0026lt;XXXi $270,748      .: GRANDTOTAL \u0026gt;\u0026lt; xxxxxxx: !::\\! ) $3 ,970,25-0 ... ; \u0026gt;\u0026lt; S3;997';327 xxxxxxxx ,  ,: / $4;407;; 07 : Stipends $30,500 $31,625 $10,000 Other Objects $0 $0 $0 Indirect Costs $235,932 $249,542 $254,772 Vocational $0 $0 $0 Athletics $0 $0 $0 Gifted Programs $152 $159 $159 Plant Services $4,604 $4,898 $4,898 Reading $72 $64 $77 Science $0 $0 $0 English $216 $230 $230 Special Education $575 $612 $612 xxxxxx xxxxxx Total Line Items $272,051 $287,129 $270,748 3rd Qtr. ADM or Proj. 551 .25 583.17 583.17 Total Costs $3,970,250 $3,997,327 $4,407,078 20.02-03:BUOGET PROPOSAL(DRAFT1)  ,  \u0026lt; 01-0-2\\ .- :  :: 01~02: . :-:- : -: :/H /i//01~02+\u0026lt;'  02~0.3\\  /?/)12~03,  //: c~rii,~ Miit.inet Sctfool .,   .. : :    '  F,T:E,) .  / proposed)) r::\u0026gt;:Actua1,.: :.i:: F,T\\ \u0026lt;P.l'opo~~dH:. CERTIFIED 01 Principal 1.0 $ 74,672 $ 74,672 1.0 $ 79,028 STAFF 02 Asst. Prin. 1.0 $ 55 ,733 $ 55.733 1.0 $ 59,057 03 Specialists 8.0 $ 341 ,075 $ 335,274 8.0 $ 338.469 04 Counselors 2.0 $ 83 .122 $ 81 ,009 2.0 $ 87,538 05 Media Spec. 1.5 $ 51 ,594 $ 68,943 1.5 $ 70,859 06 Art-Perf./Prod. 0.0 $0 $0 0.0 so 07 Music 0.0 so $0 0.0 $0 08 Foreiqn Lanq. 0.0 so so 0.0 $0 09 Vocational 0.0 so $0 0.0 so 10 Special Education 1.5 $ 57,166 $ 63 ,805 1.5 $ 67,474 11 Gifted 1.4 $ 63.368 $ 63,358 1.4 $ 67,099 12 Classroom 21 .3 $ 776.272 $ 771 ,194 21 .3 $ 849,791 13 Substitutes 0.0 $ 30 .000 $ 30 ,216 0.0 $ 32,000 14 Other-Kinderqarten 5.0 $ 213,563 $ 213.563 5.0 $ 224,222 TOTAL CERTIFIED SALARY 42.7 $1 ,746 ,565 $1,757,767 42.7 $1,875 .537 SUPPORT 15 Secretaries 3.0 $ 64.212 $ 65,786 3.0 $ 76,090 STAFF 16 Nurses 1.0 $ 38 ,705 $ 30.717 1.0 $ 32.672 17 Custodians 4.0 $ 60 .923 $ 56 .233 4.0 $ 63.439 18 Information Services 0.2 $ 9,058 $ 9,130 0.2 $ 9,419 19 Paraprofessionals-Other 0.0 $0 $0 0.0 $0 20 Other-Aides 11 .0 $ 127,929 $ 131 ,568 4.4 $ 98,392 21 Fringe Benefits(20) xxxxfu\u0026amp;i $ 531,481 $ 506,792 )C(X)()~)()t $ 568,219 TOTAL SUPPORT SALARY 19.2 $832 ,308 $800,225 12.6 $848,231 TOTAL (10-20) xxxi\u0026lt;XX)O(:' SZ.578.873 52,557,992 xxxxioo\u0026lt;. $2,723,768 PURCHASED 22 Utilities XJO(X)OO(X , $ 57,257 $ 49.267 -xxxiooooc $ 52,173 SERVICES 23 Travel l0000\u0026lt;XXX $ 12.000 s 9.350 XXXJOO\u0026lt;:i\u0026lt;)( $ 7,000 (30) 24 Maintenance Aqreements xxxxxxxx $0 so -~  $0 25 Other ~ s 10 .803 $ 14,385 l0000(;l(io( $ 13,320 TOTAL (30) xJOixxxxx S80.060 $73,002 xxx\u0026gt;ooixk $ 72.493 MATERIALS, 26 Principal's Office xxxxx,oo( $0 $0 xxxxxiexx  $0 SUPPLIES 27 Reoular Classroom i\u0026lt;io\u0026amp;xxxx s 74.280 $ 79.393 l\u0026lt;JOO\u0026lt;X:XXX: $ 73 ,941 (40) 28 Media ')()000()()0(' $ 9.000 $ 8,968 ~iot $ 13.100 29 Other )OOQ()(XXX  $ 27 ,901 $ 30.062 . .X l0()()00(X. $ 24.033 TOTAL (40) XJOO()()()(X. S 111 ,181 S118.424 xxxxxxxi $ 111 ,074 CAPITAL 30 Equipment xxxxxxxx $ 253.800 $ 261 .853 .xiaooo:xx $ 65 .200 OUTLAY 31 Building Repair, etc. xio:xxxxx i $0 so xxxlOO(xxi $0 (50) 32 Other xxxxxi(xx so $0 xxxxxxxii:  $0 TOTAL (50) xxxxxxxx : S253.800 $261 ,853 XXXX)OO(X;' $ 65 .200 OTHER 33 Dues and Fees )OO{)()()(j()( $ 2,000 $ 3,295 xxxroxX: $ 2.000 (60) 34 Other )00()00:;;,o( $0 so xxxJ\u0026lt;XXioi.,  50 TOTAL (60) xxxxxxxx S2.000 $3 .295 xxxxxxxx $ 2.000 TOTAL (30-60) xxxxxix,( S457.041 S456.574 XJOO\u0026lt;X:XXi( S250,767 TOTAL (10-60) 61 .9 $3 .035 .914 $3,014 ,566 55.3 $2,974,535 TOTAL LINE ITEMS - (SECOND PAGE) xxxxxxxx S249.080 $233,435 xxxxxx\u0026gt;ixi $236.409 ..  '\u0026lt;..GRANDTOTAL   . -... :: xxxxxxx  ::::: ) S3.284;994 )\\::: ' $3,248;00:1 :xx:xxxxxxi' :::: : ::: $3~210,944 c~rv.~r.H /\\/)? '\\ 2001-02 2001-02 2002-03 Stipends $26.463 $17,107 $15,643 Other Objects $0 $0 $0 Indirect Costs $217,439 $211 ,279 $215,707 Vocational $0 $0 $0 Athletics $0 $0 $0 Gifted Proorams $140 $135 $135 Plant Services $4,243 $4,147 $4,147 Readino $66 $54 $65 Science $0 $0 $0 Enolish $199 $194 $194 Special Education $530 $518 $518 xxxxxx xxxxxx Total Line Items $249,080 $233,435 $236.409 3rd Qtr. ADM or Proi. 508.04 493.75 493.75 Total Costs $3,284,994 $3,248,001 $3,210,944 CERTIFIED 01 Principal 1.0 $ 73 ,036 $ 73,036 1.0 $ 77,260 STAFF 02 Asst. Prin. 1.0 $ 55 ,601 $ 55.601 0.0 $0 SUPPORT STAFF 03 Specialists 6.8 $ 266.044 $ 251 ,648 6.8 $ 276,900 04 Counselors 1.0 $ 31 ,000 $ 40.343 1.0 $ 42,524 05 Media Soec. 1.0 $ 53 ,116 $ 52 .307 1.0 $ 54,599 06 Art-Perf./Prod. 0.0 $0 $0 0.0 $0 07 Music 0.0 $0 SO 0.0 so 08 Foreiqn Lanq. 0.0 $0 $0 0.0 $0 09 Vocational 0.0 SO SO 0.0 $0 10 Special Education 2.0 $ 89 .448 $ 87,264 2.0 $ 90,833 11 Gifted 1.0 $ 40 .616 $ 40 ,616 1.0 $ 42,805 12 Classroom 16.5 $ 70 1.377 $ 709,180 16.5 $ 724,169 13 Substitutes 0.0 $ 14,000 $ 11 .094 0.0 $ 15,000 14 Other-Kinderqarten 2.0 $ 87.050 $ 86.769 2.0 $ 90,530 TOTAL CERTIFIED SALARY 32.3 $1,411 ,289 $1 ,407,858 31 .3 $1,414,619 15 Secretaries 1.4 $ 35,431 $ 28 .978 1.4 $ 32.000 16 Nurses 1.0 $ 37,713 $ 37 .517 1.0 $ 39,818 17 Custodians 3.0 $ 46,484 $ 48 .280 3.0 $ 49 ,324 18 Information Services 0.2 $ 9,058 $ 9,130 0.2 $ 9,419 19 Paraprofessionals-Other 0.0 $0 so 0.0 $0 20 Other-Aides 6.6 $ 58 ,415 $ 53 ,891 3.2 $ 43,022 21 Fringe Benefits(20) xxxxioiJ\u0026amp; $407,532 $ 364 ,638 )00()()00()( $ 411 ,792 TOTAL SUPPORT SALARY 12.2 $594,634 $542,434 8.7 $585,374 TOTAL (10-20) XXX)00(XXi $2,005 .922 $1,950 .292 lOOO\u0026lt;x-xxi( $1 ,999.994 PURCHASED 12-2--+U_t_ili_ti_es ________x _ JO_O O \u0026lt;XX _x~_s_ __3 _1.6_3_3-t-$ __2 _4_._16_3--+x-_x.xx_x:xx.x-;~$---2-4~.7-1_5-i SERVICES 23 Travel xxxxioixx:' $ 2.000 $ 10.291 XXXXloixi( $ 2,000 (30) 24 Maintenance Aqreements xxxxio.ixi( $0 $0 :xxxio\u0026amp;i\u0026lt;i( $0 MATERIALS, SUPPLIES (40) CAPITAL OUTLAY (50) OTHER (60) 25 Other xxxxxxi\u0026lt;i( $ 32.568 $ 8.201 xxxiodiio( $ 10,730 TOTAL (30) J0000\u0026lt;Xi\u0026lt;i( $66 .201 $42.655 xx:idoo:xi( $37,445 26 Principal's Office ooxlciiio( $ 1 .500 $0 'XXXXJOOO( S 1,000 27 Reqular Classroom xxxxxixk $ 34 .050 s 51 ,801 xxxxxxio( s 55.284 28 Media XXXJOOO\u0026lt;X;' $ 3,500 s 1. 138 xxxiooi:iod s 3,500 29 Other xxxxxxxx s 75 .1 45 s 79 .004 :~  $ 27.685 TOTAL (40) xxxxxxxi: $114. 195 $131 .943 xio(xioooci $ 87.469 30 Equipment XXXlOOOQ( . $ 254 .554 $ 244,662 XXXJOOOOC. $ 150.341 31 Buildino Repair. etc. xxixxxxx so so xxxx.Jooo( $0 32 Other ~xxxxx $0 $0 x xxxi\u0026amp;xx : $0 TOTAL (50) xxxxxxxx $254,554 $244.662 x xxxiod\u0026lt;x  $ 150,341 33 Dues and Fees xxxxxxxx s 3,ooo s 1.284 xxxxiooix s 1,500 34 Other XXlOOO'.xx $ o $ o xxxxxxx,( $ o TOTAL (60) xxxxxxxx $3 ,000 $1,284 xxxxxxxx $ 1,500 TOTAL (30-60) XJOO\u0026lt;xxi\u0026lt;x $437 .950 $420.544 .XXJ\u0026lt;xx:i(~.i( $276.755 TOTAL (10-60) 44.5 $2,443.872 $2,370 .835 40.0 $2 .276.749 TOTAL LINE ITEMS- (SECOND PAGE) xxxxxxxx $198.014 $139.360 XXX)()(Xi\u0026lt;i( $188.118    :  \u0026lt; GRANDT OT:AL' ::.    xxxlOCXJC  / ; $2~641,886i \u0026gt; :  S2;510;1.95 . xx.xxxxxx :/(:$2~464;86.Gi Stipends $65,440 $4,451 $50,440 Other Obiects $0 $0 $0 Indirect Costs $129,490 $131,761 $134,522 Vocational $0 $0 $0 Athletics $0 $0 $0 Gifted Programs $83 $84 $84 Plant Services $2,527 $2,586 $2,586 Rea di no $39 $34 $40 Science $0 $0 $0 English $118 $121 $121 Special Education $316 $323 $323 xxxxxx xxxxxx Total Line Items $198.014 $139,360 $188,118 3rd Qtr. ADM or Proj. 302.55 307.92 307.92 Total Costs $2.641 ,886 $2,510,195 $2.464.866 2002-:03 BUD\u0026lt;3c~ PROPOSAL(DRAFT:1) -:, ,:: ,  / :.01;;02/ //i\u0026lt; D1 }2 H /\\i :::::H\"Qt~o2.:::::: :=: 02;;03\\ :.=::: = oi:o3 = :: Wllliams.-/v1agnet School  :- .  .-  \u0026gt; . .-, _-. _. .:  ? \u0026lt; ET,E,/ \u0026gt; Priii:idse.d; \\ ::\\\\Acttia:I //. ,;:i:Fff;E/ \u0026gt;::f'r'ooosed:\u0026gt;, CERTIFIED 01 Principal 1.0 $ 81,976 $ 81 ,976 1.0 $ 84,256 STAFF 02 Asst. Prin. 1.0 $ 52.481 $ 52.981 1.0 $ 60,557 03 Specialists 5.0 $ 244,846 $ 244,683 5.0 $ 251,669 04 Counselors 1.4 $ 38,750 $ 34,304 1.4 s 64,565 05 Media Spec. 1.0 $ 44,260 s 43,702 1.0 $ 46 ,565 06 Art-Perf./Prod. 0.0 so $0 0.0 so 07 Music 0.0 $0 $0 0.0 $0 08 Foreion Lano. 0.0 $0 $0 0.0 $0 09 Vocational 0.0 so so 0.0 $0 10 Special Education 1.1 $ 43,157 $ 43.432 1 .1 $ 45,183 11 Gifted 2.0 $ 99,679 s 99,679 2.0 $ 104,001 12 Classroom 20.0 $ 840 ,860 $ 858,576 20 .0 s 859,254 13 Substitutes 0.0 $ 28 .000 s 25,614 0.0 $ 28,000 14 Other-Kinderoarten 3.0 $ 148.257 s 129,111 3.0 $ 133,814 TOTAL CERTIFIED SALARY 35.5 S1 .622 .266 $1 ,614,058 35 .5 S1 .677,863 SUPPORT 15 Secretaries 3.0 $ 65 .041 $ 63,421 3.0 $ 66,364 STAFF 16 Nurses 1.0 $ 50 .775 s 50,775 1.0 $ 52,192 17 Custodians 3.5 s 49,997 $ 48,074 3.5 $ 53,838 18 Information Services 0.2 s 9,058 $ 9,130 0.2 $ 9,419 19 Paraprofessionals-Other 0.0 $0 $0 0.0 $0 20 Other-Aides 7.0 $ 47,312 $ 42,424 4.8 $ 59,039 21 Fringe Benefits(20) ioooo\u0026lt;xxx $461 ,695 $ 410,932 xxxiodixx $ 469,708 TOTAL SUPPORT SALARY 14.7 $683 ,877 $624,755 12.5 $710,559 TOTAL (10-20) ioooooooc $2.306 .144 S2.238 .814 ioooocxio( $2,388,422 PURCHASED 22 Utilities X)(X)OOO()( $ 49 ,142 s 39,058 xxxxxxxi( $ 45.129 SERVICES 23 Travel X)00()QO(X: $ 3.000 $ 3.902 )00{)()0(){)(. $ 5.000 (30) 24 Maintenance Aoreements ~  $0 $0 XXXXXXXX: $0 25 Other XX:XJOOO\u0026lt;X $ 20 ,780 $ 15.386 -~xi $ 17.849 TOTAL (30) XXXlOOO\u0026lt;Xi'. $72,922 $58.346 :~  $ 67,978 MATERIALS, 26 Princioal's Office xlOOO\u0026lt;XXX $0 $0 XXX)OOO(X : $0 SUPPLIES 27 Reoular Classroom XJOOO:xxx $ 77,415 $ 71 ,709 XXlOOOO\u0026lt;X  $ 76 .100 (40) 28 Media xxxiixxxx.: $ 4,600 $ 6.824 'XXXJOO\u0026amp;x' $ 4.600 29 Other iioooooooc:: $ 61 ,411 $ 67,015 xxxxx:xxx  $ 63.527 TOTAL (40) )()(;X)0000(:. $143,426 $145.548 xxioooixx  $ 144,227 CAPITAL 30 Equipment XX:XXlOOO(  $ 127.050 s 135,292 xxxio\u0026amp;xx: $ 106.800 OUTLAY 31 Building Repair, etc. i\u0026lt;ioooooix. $0 $0 xxxxxxxx:: $0 (50) 32 Other :xxx)O(;X)O\u0026lt;'. $0 $0 'xxxi66ooc:: $0 TOTAL (50) i\u0026lt;xxxlo:xx:. $127,050 $135,292 i\u0026lt;xxl\u0026lt;XXi\u0026lt;X j $ 106,800 OTHER 33 Dues and Fees ioooocxxx $ 1,500 $ 1,093 xxxxxxio( $ 1,500 (60) 34 Other xxxxxxxx $0 $0 xxxxxxxx $0 TOTAL (60) xxxxxix;,C: $1 .500 $1 ,093 xioooo\u0026lt;xx $ 1.500 TOTAL (30-60) xxxxxxxx  $344,898 $340,279 xxxxx:xxx  $320,505 TOTAL (10-60) 50.2 $2.651,042 $2.579,093 48.0 $2,708.927 TOTAL LINE ITEMS - (SECOND PAGE) XXXX)OO(X:. $210.444 $196.499 xxxxxxxx. $208.875 : \u0026gt;\u0026gt;GRAND TOTAL \u0026gt;  xxxxxxx; .-. : ::$2,861-,48'6:' \u0026lt;:;: -  $2,775;592 XXXXXXXX : , : ---   \u0026lt;: : : $2;9'17;802: 2001-02 2001-02 2002-03 Stipends $10,000 $1 ,623 $10,000 Other Obiects $0 $0 $0 Indirect Costs $195,782 $190,328 $194,317 Vocational $0 $0 $0 Athletics $0 $0 $0 Gifted Proqrams $126 $122 $122 Plant Services $3,820 $3,736 $3,736 Readinq $60 $48 $58 Science $0 $0 $0 Enolish $179 $175 $175 Special Education $4 78 $467 $467 xxxxxx x.xxxxx Total Line Items $210.444 $196.499 $208,875 Per P.t.iowcostH\u0026lt; 3rd Qtr. ADM or Proi. 457.44 444.79 444.79 Total Costs $2,861.486 $2,775,592 $2,917,802 Q1sQ2 :;:;:-:: \\ 02:-03/ J\\i:\\02~03\u0026lt;:// ..,=: Adliiit: :: \u0026lt; F;T:E\u0026gt;i H\u0026gt;P.rcip(isid :/: CERTIFIED 01 Principal 1.0 $72,676 $72,676 1.0 $76,900 STAFF 02 Asst. Prin. 3.0 $176,705 $227,638 3.0 $156,888 03 Soecialists 3.6 $163.370 $164,345 3.6 $134,194 04 Counselors 3.0 $149,517 5145,587 3.0 $156,487 05 Media Spec. 1.0 $53,116 $53 ,116 1.0 $54,599 06 Art-Perf./Prod. 0.0 $0 so 0.0 $0 07 Music 0.0 $0 $0 0.0 $0 08 Foreiqn Lang. 0.0 $0 $0 0.0 $0 09 Vocational 2.6 $132.513 $133,962 2.6 $138,640 10 Special Education 1.3 $63,233 $65.323 1.3 $69,290 11 Gifted 0.0 $0 $0 0.0 $0 12 Classroom 49.8 $2.087,522 $2,170,720 49.8 $2,189,224 13 Substitutes 0.0 555,000 $78,616 0.0 $60,000 14 Other-Kinderqarten 0.0 $0 $0 0.0 $0 TOTAL CERTIFIED SALARY 65.3 $2,953,651 $3,111,983 65.3 $3,036,222 SUPPORT 15 Secretaries 5.0 $132.784 $128,608 5.0 $126.526 STAFF 16 Nurses 1.0 $41,496 $30,366 1.0 $33,222 17 Custodians 6.0 S79,465 $96 ,858 6.0 $93.824 18 Information Services 0.2 $9,058 $9,130 0.2 $9,419 19 Paraprofessionals-Other 1.0 $31,361 $32,113 1.0 $33,284 20 Other-Aides 2.4 $32,502 $49,399 2.4 $52,900 21 Fringe Benefits(20) ~  $797,21 3 $837,646 x~ $878,574 TOTAL SUPPORT SALARY 15.6 $1,123,879 $1,184,120 15.6 $1 ,227,749 TOTAL (10-20) xxxxxxxi( $4.077.530 S4,296, 103 -~ . $4,263.970 PURCHASED 22 Utilities .xxxi\u0026lt;xxxi( S150,786 $149.815 xx:xi\u0026lt;icoo::: $48,500 SERVICES 23 Travel xxxxioooc: ' 53.000 $9.496 x~ S4.000 (30) 24 Maintenance Agreements xxxxxxi\u0026lt;x $0 $0 i\u0026lt;xxxloiio( $0 25 Other xxxxxm  S63.345 $73,793 XXJ()(J(XXi( $50,160 TOTAL (30) xxxxx,oo\u0026lt;' S217.131 $233 ,104 .xxxio\u0026amp;xx $102.660 MATERIALS, 26 Principal's Office l\u0026lt;.XXXXX)(k. $0 $0 XXlOO(;)O(X. $0 SUPPLIES 27 Reqular Classroom xxxxx:ioo( S100.988 $107.387 XXXXJ\u0026lt;XXX: $79,505 (40) 28 Media $7,500 $6.399 ~ ' $4,425 29 Other Xl\u0026lt;XXJ000f $16,016 $21.443 joooo\u0026lt;xxx: $108,888 TOTAL (40) $124.504 $135.228 XXlO\u0026lt;XXXx-: $192.818 CAPITAL 30 Equipment xxxxxxi\u0026lt;x'' S238,607 $209.170 xx.xxxxxx S291.430 OUTLAY 31 Buildino Repair. etc. :xxi\u0026lt;xxxxit $0 $0 xxxxxxi\u0026lt;x: $0 (50) 32 Other xxxxxxxx: $0 so xxxxxxxx : $0 TOTAL (50) ,xxxxxxxxi $238.607 $209,170 -XJ00000()(: 5291,430 OTHER 33 Dues and Fees XXXXXXXX': $2.000 $870 .)()()()(XXXX: $1 .000 (60) 34 Other $0 $0 xxxxxxxx: $0 TOTAL (60) xxxxxx,o( S2.000 $870 XXJ\u0026lt;XXJ(io( $1 .000 TOTAL (30-60) XXXJOQOO( S582.242 $578,372 xxxxxxxx. $587.908 TOTAL (10-60) 80.9 $4.659.772 $4.874,475 80.9 $4,851 ,878 TOTAL LINE ITEMS - (SECOND PAGE) ,XXXXX:XXJC $417.384 $399,312 xxxxxxxx $427.346 xxxxxxic   \"  S5,077; 1.S6': )\u0026gt; SS;273;787 icicxxx:xx !\\:/ i SS,279,225 1 Stipends $8 ,100 $1 ,508 $4,000 Other Objects $0 $0 $0 Indirect Costs $365,944 $358,611 $366,127 Vocational $13,936 $9,943 $13,881 . Athletics $20,924 $20,910 $34,980 Gifted Proorams SO $0 $0 Plant Services $7,141 $7,039 $7,039 Reading $112 $91 $110 Science $0 $0 $0 Enolish $335 $330 $330 Soecial Education $893 $880 $880 xxxxxx xxxxxx Total Line Items $417,384 $399,312 $427,346 Per Pifoii cost 3rd Qtr. ADM or Proj. 855.02 838.06 838.06 Total Costs $5 ,077.156 $5 .273,787 $5 .279,225 Per Pupil Ci:isti'/ 200203 BUDGET PROPOSAL(DRAFT1) ': :    01~02i ' /(; Ot--02\u0026lt;\\/ ///01~02 / , \\ 02~03,i ,, \\:!02~3: // Pa~kview.-Magnet Sch'ool    : :. ., '  -F~T;E/ :}/Pr:oposed / \u0026lt;\u0026gt; Actual \u0026gt;  :. F.T;E., //Proposed\\( CERTIFIED 01 Principal 1.0 $85,608 $85,608 1.0 $87,960 STAFF 02 Asst. Prin. 3.0 $195,530 $195,530 3.0 $199,442 03 Specialists 9.8 $450,923 $442,725 9.8 $417,393 04 Counselors 4.0 $203,873 $186,601 4.0 $184,944 05 Media Spec. 1.0 $43,594 $43 ,594 1.0 $44,804 06 Art-Perf./Prod. 0.0 $0 $0 0.0 $0 07 Music 0.0 $0 $0 0.0 $0 08 Foreion Lano. 0.0 $0 $0 0.0 $0 09 Vocational 5.0 $295,031 $299,008 5.0 $254,142 10 Special Education 2.0 $47,078 $31 ,553 2.0 $53,213 11 Gifted 0.0 $0 $0 0.0 $0 12 Classroom 52.6 $2,497,097 $2,502,762 52.6 $2,567,589 13 Substitutes b.O $58,000 $59,013 0.0 $60,000 14 Other-Kindergarten 0.0 $0 $0 0.0 $0 TOTAL CERTIFIED SALARY 78.4 $3,876,734 $3,846,394 78.4 $3 ,869,487 SUPPORT 15 Secretaries 7.0 $266,050 $277,654 6.0 $197.498 STAFF 16 Nurses 1.0 $36,721 $36,721 1.0 $38,798 17 Custodians 9.5 $159,341 $158,002 9.5 $166,569 18 Information Services 0.2 $9,058 $9,119 0.2 $9,408 19 Paraprofessionals-Other 5.0 $149,610 $148,080 5.0 $151,556 20 Other-Aides 2.0 $50,544 $70,418 2.0 $74,246 21 Fringe Benefits(20) ~ i $1 ,108,477 $1 ,014,201 ~  $1,159,982 TOTAL SUPPORT SALARY 24.7 $1 ,779,802 $1,714,194 23.7 $1 ,798,057 TOTAL (10-20) x~ $5,656,536 $5,560,589 ~  $5 ,667,544 PURCHASED 22 Utilities ~  $174,515 $157,114 ~  $173,576 SERVICES 23 Travel ~  $10,600 $12,415 ~  $11 ,500 (30) 24 Maintenance Agreements 25 Other ~  $76,785 $76,136 ~: $37,510 TOTAL (30) ~  $261 ,900 $245,665 ~  $222,586 MATERIALS, 26 Principal's Office i6oo\u0026lt;l\u0026amp;x $500 $265 ~  $200 SUPPLIES 27 Reqular Classroom ~ : $192,705 $186 ,632 ~  $194,238 (40) 28 Media i\u0026lt;xi\u0026lt;ic\u0026amp;x $12,000 $13,033 xiooooo\u0026lt;X' $15,400 29 Other ~ : $8,782 $19 ,516 ~ . $9,080 TOTAL (40) ~ s213,987 s219,447 xx~ s218,918 CAPITAL 30 Equipment x;ioooooc: $264,831 $238 ,747 ~  $91 ,600 OUTLAY 31 Buildinq Repair, etc. i\u0026lt;XxxxxX: $0 $0 ~ : $0 (50) 32 Other ~ $0 $0 ~ : $0 TOTAL (50) JOCXi\u0026lt;)i;Xif $264,831 $238,747 ~  $91,600 OTHER 33 Dues and Fees XXXJ(X)(X s7,4oo $1 .045 x.xxxxioo\u0026lt; s2.400 (60) 34 Other xxxxioof so so xioo6ooo\u0026lt;, so TOTAL (60) xxxx.xxx $7,400 $1 ,045 XXXJQOO(X $2,400 TOTAL (30-60) xxxxxxx $748,118 $704,904 XXX~XXX: $535.504 TOTAL (10-60) 103.1 $6,404,654 $6,265,493 102.1 $6,203,048 TOTAL LINE ITEMS - (SECOND PAGE) xxxxxxx S562,317 s5so,712 xxxxxxxx $582,978 ' _._.,_,,,, 'G.RAND TOTAL!''\" : \u0026gt; . 2001-02 2002-03 Stioends $6,000 $6,423 $6,000 Other Obiects $0 $0 $0 Indirect Costs $495,340 $488,750 $498,993 Vocational $18,864 $13,551 $18,919 Athletics $30,635 $30,621 $47,673 Gifted Programs $0 $0 $0 Plant Services $9,666 $9,594 $9,594 Readinq $151 $124 $150 Science $0 $0 $0 Enalish $453 $450 $450 Soecial Education $1 ,208 $1 ,199 $1 ,199 xxxxxx xxxxxx Total Line Items $562,317 $550,712 $582,978 PerPli:pi!Cost): 3rd Qtr. ADM or Proi. 1,1 57.35 1,142.19 1,142.19 Total Costs $6 ,966,971 $6,816,205 $6,786,026 IN THE UNITED STATES DISTRJCT COURT EA.STER.\"J\\i DISTRJCT OF ARK.A_N\"SAS '\\VESTEfu\"J DIVISION I,.JTTLE ROCK SCI;IOOL DISTRJCT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. l, ET AL :tvffi.S. LORENE JOSHU.~ ET AL KATHERil\\TE KNIGHT, ET AL RECEIVED AUG 1 9 2002 OFFICEOF DESEGREGATION MONITORING PLAINTIFF DEFEND.ANTS INTER VEN ORS INTER VENO RS JOSHUA INTERVENORS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN OPPOSITION TO THE LRSD'S REQUEST FOR UNITARY STATUS REGARDING THE PLAN SECTIONS INTRODUCTION This case is before the Court upon the LRSD' s motion to be released fi:~m Court supervision and to be released from its remedial obligations to African American students. Upon the liability findings of the District Court in 1987 and in earlier proceedings, the first remedial agreement occurred in 198 9 and was approved by the Court of Appeals in 1990. Between 1990 and 1998, the District Court, the Honorable Susan Webber Wright, oversaw remedial proceedings and, as directed by the Court of Appeals, appointed and involved an Office of Desegregation Monitoring (ODM) staff to assist with achievement of the objectives of the Revised Desegregation and Education Plan. After  repeated hearings before the Court, and upon the urging of the District Court, in January, 1998 the LRSD and the Joshua Intervenors entered into a Revised Desegregation and Education Plan before the Court - the Revised Desegregation and Education Plan. The Revised Plan was intended to A: 1JOSHUA..OPP -1- implement the original remedy of school desegregation ordered by the Court. The Revisep Desegregation Plan was to be a minimum of three (3) years in duration and its terms of expected action were generally set forth therein. It was amicipated that upon compliance the school District would petition, with approval of the Joshua Imervenors, the Court for release of the District from Court supervision. The predicate for release was substantial compliance with commitments set forth therein andotherwise required by law as well as ancillary agreements entered into on behalf of the Joshua class between the LRSD and the State of Arkansas Department of Education. The District developed a Compliance Committee which consisted of the school superintendent and his senior staff of associate superintendents. The Compliance Committee was assisted by District counsel during its deliberations. The Joshua. Intervenors were not invited or allowed to participate in Compliance Committee deliberations or activities. The District employed two experts with - Joshua's. approval to assist the District in devising remedies as set forth in the Revised Plan, Dr. Terrence Roberts and Dr. Steven Ross. The experts were not participants of the Compliance Committee. Ultimately, the Compliance Committee developed the Compliance Report dated March 1:5, 2001 which is now before the Court after a second set of hearings before the Honorable William R. \"Bill\" Wilson. The first set of hearings occurred in Juiy, August and November of2001 and were overseen by the Honorable Susan Webber Wright, Chief District Judge of the Eastern District of Arkansas. The LRSD moved for her recusal in October, 2001. The Court denied recusal. l.Jltirnately, these proceedings were scheduled for January, 2002 but they were delayed upon motion ofJoshua. The Honorable Susan Webber Wright decided in January, 2002 to withdraw as the judge in this case and the case was assigned to the Honorable William R. \"Bill\" Wilson. A:1JOSHUA.OPP -2- l L !, : .J~t Wilson scheduled and held hearings during July, 2002 upon the objections raised by Joshua IC the Compliance Report of March 15, 2001. After the hearings, the Court required the parties to 3ubmit contemporaneous findings of fact and conclusions of law and/or statements in further ~-t'!--'u --.: of the parties ' respective positions to the Coun by 1100 a.m., August 19, 2002. This filing repr ,nts the Joshua Intervenors' compliance with the Court's directive. It also summarizes the rebuttal evidence presented byJ oshua through Ms. Ann 11larshall. The ; -ovisions of the Revised Desegregation and Education Plan of 1998 wl1.ich are now before the ..:.,,:.:: for review and decision are Sections 2.1, 2.6, 2.6.1, 2.6.2, 2.6.3, 2.11, 2.11.1. These sect1 ~dress, among other topics, the obligation to take steps to increase participation of qualified Ai.. an American students in advanced and enriched courses to ensure that there are no barriers to such participation, and to implement programs promoting the success of the students in these courses. These parts of the Plan also address increased participation in extracurricular activities, pn i ion of guidance counseling services in a nondiscriminatory manner and \"more equity in academic h _.-.,rs, awards and scholarships.\" The Joshua Intervenors emphasize the importance of giving attention to the overall picture ,vhich it portrays regarding the System's good faith and other matters. Good faith requires conscious intent by the school District to take actions which promote the ultimate . t,-...,,~ve:-- of the Revised Desegregation and Education Plari. We submit that the ultimate object1 ves of the Revised Desegregation and Education Plan necessarily include elimination of the vestiges of rc.cial discrimination and the replacement of those vestiges with policies, programs, practices and procedures which do not lead to resegregation. Joshua submits that the actions of the school district, 2  __  vn in the proceedings before Judge Wright and Judge vVilson, demonstrated that the District -;.1ot acted in good faith in meeting the obligations which are set forth in the A: 1JOSHU4.. OPP January, 1998 Revised Desegregation and Education Plan. I. THE TESTIMO:NY OFODMDIRECTORA1\"i\"NlVLI\\.RSHALLREBU.TS THE LRSD'S POSITION REGARDING EVALUATIONS Al~ OTHER ELEMENTS OF PLAN IMPLEMENTATION :tvis. Marshall testified that when the March 15, 2001 Report was presented, the evaluation documents were not available as r~presented therein. [Tr. at 15] Many of the evaluations are still not locatable, especially the final reports [Tr. at 16-17] and could not have been approved by the school board. Dr. Lesley, whose Division of Instruction was responsible for program evaluation, complained to Ms. Marshall about the LRSD  s lack of program evaluations as represented in the Report. [Tr. at 18 (Marshall)] She and Lesley agreed that the quality of the reports was not good. [Tr. at 33] Marshall stated that the District did not mal,;:e \"annual evaluations\" of all programs as LR represented would occur. (Section 2. 7.1 of the Revised Plan. Tr. at 20-22] Nor did LR make \"annual assessments\" of all programs or an annual \"listing of programs\" by the assistant superintendent to be assessed annually. [Tr. at 3 7, 39] She further stated that the school district developed a \"Research Agenda\" which further unilaterally narrowed the evaluation requirements of the Plan. The programs which were included in the research agenda were not completed. [Tr. at 3 6] She also stated that the ODM did not any evaluations of programs on behalf of the LRSD. [Tr. at She testified that LRSD staff whom she met with understood the term \"assessment:' when used in the Plan to mean evaluations. Joshua reiterates therefore that the LRSD did not comply with the Plan commitments that it evaluate annually all programs from an effectiveness perspective in order A:\\JOSII'c.JA OPP -4- to determine their efficacy in meeting plan objectives. Joshua now. proceeds to address the areas on which the Court allowed the development of evidence duri_ng the July, 2002 hearings. Joshua now proposed the following facts : A. The Good Faith Requirement of the Section 2.1 of the Revised Desegregation and Education Plan. With respect to Section 2.1 , good faith, the Interim Compliance Report does not address that subject The March 15, 2001 Compliance Report purports to state what the District will do upon unitary status being declared; what has been done by campus leadership teams in the schools; and awards which the District has received known as the Arkansas Quality Award. It does not in the body of the report address the objective ofremedyingthe effects of past discrimination and ensuring that for the future racially discriminatory practices will not be reinstituted. Moreover, the District did not develop a policy with respect to this provision. B. The Obligations to Identify Qualified African American Students and to Promote their Successful Participation in AP and Other Honor and Enriched Courses I. The District's March 2000 and 2001 Compliance Reports 1. The Interim Report indicates that the school shall be active in identifying students for placement for Pre-AP and AP courses. (Interim Report, p. 20). At the outset of Revised Plan implementation, the written criteria for enrollment in Pre-AP and AP courses include multiple factors such as \"l. High-level reading comprehension and wTiting skills as evidenced by norm-referenced test data and classroom performa.i.'lce\" and \"4. 'B' average and above in regular-level class.\" [CX. 719 (Reg. IHCC-R); [Tr. at 49 (Norman)]; [Tr. at 560 (l Mosby)] However, in approximately January 2001, the LRSD revised the criteria so that ther:eafter there would be, basically, a free choice A: lJQSh.u...4. OPP -5- assignment into advanced and enriched courses. [Tr. at 86 (Norman); [Tr. at 473 , 498 (Carter)] 2. The District represents that it approved five new policies which were to ensure that there would be no barriers to African American student participation in advanced courses. (See Interim Report p. 17) Policy IHCC addressed training programs for teachers and counselors in identifying and encouraging increasing \"percentages\" of students to participate in advanced placement courses. Policy IHBB addressed \"assessing gifted potential through program designs that are flexible and varied enough to be adaptable to individual student need and through curricular designed to nurture gifted potential. Policy IKC addressed calculating grade point averages and rank and class. Policy IKF established enhanced course requirements with a total of twenty-four required units and increased the rigor of the curriculum Policy IHBEA addressed English as a second language. 3. Joshua submits that none of these policies addressed the subject of identifying and encouraging African ivnerican students to participate in advanced placement courses other than possibly Policy IHCC, the Professional Development Program for Teachers and Counselors. Even IHCC does not address the matter ofidentifying and encouraging increasing \"percentages\" of African A... merican students . 4. Policy IHBB is very general. Policy IKC does not address the issue ofrace. Policy IKF addresses increasing the units required for graduation and stiffens the requirements for honors at graduation time. Policy IHBBA does not apply to African .Americans although the District says that there are several students with African backgrounds who may profit by the English as a second language pro gram. 5. The 2001 Report indicates that Policy IKF \"raised the bar\" even higher so that instead of twenty-four units being required to graduate, students were expected to complete twenty-eight units A: ;JOSHUA.OPP -6- r :i including at least eight Pre-.AP or AP courses. \"Raising the bar\" has not been shown by the District as a program, policy, practice or procedure which reasonably could be expected to either identify or encourage African American students to participate in advanced courses, or to assist them in being successful in advanced courses. Instead \"raising the bar\" in the manner the LRSD did became a \"barrier'; itself for African American children because of their dismal success on the measurement barometers. 6.  The 2001 Report content on pp. 3 0-31 does not demonstrate how .A..frican .American students are benefitted by these policies. 7. The Interim Report identifies Administrative Regulation IHCCR as being ,witten to promote the \"percenta2:e\" of African .A.rn.erican students who enroll in Pre-AP and AP courses. The 2001 Compliance Report does not address Regulation IHCCR. No data are presented to show how this procedure has worked in practice between October 2 l and March 15, 2001. The other regulations are IKC-R, IKF-R2 but they do not address issues relating to African American students in particular. IKC-R addresses rank in class and IKF-R2 relates to general graduation requirements. Both regulations appear to give advantage to white pupils in AP programs. 8. The 2000 Report (CX. 869 at 22-23) that the District v1ill utilize a Quality Index to promote enrollment of African American students in advanced courses in order to make \"data driven\" decisions. The District further represents that the Quality Indicators are routinely disaggregated \"so that progress for each group can be determined.\" The Quality Indicators for the high schools were not presented in the 2001 Report except for the percentages of students taking the ACT The percentage of students taking the .AP makes no reference at all to the race of AP examinees [e.g. 4 3] Moreover, the District did not present the number of minority students earning a score \"19\" on the A: \\JOSJ:FUA. OPP -7- ACT as promised in the Interim Report. The \"average scores\" of racial groups are presented; but the number of A.!,.,. stuqents who score \"19\" or above is not presented. [e.g. 48-49] 9. Disaggregated racial data were also promised with respect to students who earned at least \"3\" on AP exams. The District did not do this. [ e.g. 44] The data presented included \"percentage\" of students earning a \"C\" or above in AP [ e.g. 44] and Pre-.A.P courses in middle and high schools and the University Studies Progra.i:n for one year only. [ e.g. 44-4 7] 10. The District is also remiss in presenting data promised in the 2000 Report regarding the Quality Indicators set forth on page 23 [CX. 869] in its Report of March 15, 2001. For example; reference is made in the 2000 Report regarding the \"percentage\" of students who perform at the \"Advanced\" level on the Grade 4 benchmarks examinations in literacy and math. [p . 237; see also Tr. at 540] The data presented addresses the \"at or above proficient rather than, as promised, the \"advanced\" level, p. 103 (literacy); p. 131 (math). 11 . The data are not disaggregated with respect to gender. The data would allow consideration of the e)ctent to which African American males students fare within the District. 12. Vfhen the District did not present data regarding Advanced students it prevented the parties from malcingjudgments regarding the e)..'ient to which African .American students were being compared to other students. Being \"at or above proficient\" does not disclose the relative relationship benveen non African .American students in comparison to African American students. Moreover, the 2000 Report promised to disclose the \"percentage\" of students who performed in the top ouartile on the SAT9 in reading, language and mathematics. [p. 23] The 2001 report does not disclose the top quartile student performances on the SAT9. The District, however, makes judgments regarding achievement for African A.mericrui students withot use of this \"quality indicator.\" [ e.g. p. 104-105; A:'JOSHUA.OPP -8- t 1...,,, lLli::!.] .J .J ' ' ' 13. Of the. pre grams that were identified in the Interim Report, reference is made by the District to a new middle' school curriculum but the District has always had a specific curriculum for , each grade level. A  ,,. curriculum for middle schools was required because the District changed from a six-three-three em to a five-three-four system in 1997. The purported new curriculum was neither developed or intc1ded for, _African American students. The National Science Foundation Project was listed as a program but in the final report no reference is made to the National Science Foundation results. There 'S no showing that it has increased .African .tvnerican participation in AP courses. 14. The Un;,,0 r~; ..... \" ies Program at Hall High School is identified but it does not address African American student:... Rather it seeks to \"target\" strong students who have the capacity of doing \"college work.\" By its terms, African American students are not targeted I To be eligible for enrollment \"strong\" students 1 ust have either a minimum grade point average of 2. 5 on half of their college preparatory course_ - 2 minimum grade point average of3 . O; or a minimum score of at least 21 on the ACT. The 2001 , rt with the disaggregated data presented by the District shows the race of the average student with a score of21 on the ACT to be white or Asian. Black students are almost four numbers below tha, score. Moreover, the District did not present any charts which showed the number of studen- ~ at 3all who made minimum grade point averages of 2. 5 on at least half of their college preparator, 1rses nor did it enumerate in a chart the number by race of\"strong students who have the capacity o doing college work.\" The Universitv Studies Program_ therefore. tended to favor the stronger sti;,:ients with the better grades. the higher test score averages with means which is another wav of sa .11.: 2: that it favored white students! A:VOSHUA.OPP -9- 15. Page 15 of the 2001 Report reflects the enrollmem by race in the University Studies Program. What began as a majority Black enrollment evolved in one year to clearly a majority white enrollment taken from within a majority Black school. As is shown throughout these :findings, this result could have been anticipated because of the financial costs associated with participation in the University Studies Program. Those costs constitute a barrier to participation. We note that now that the program includes most of Hall'~ white children, the plan is for the course grade to be weighted. [Tr. at 110 (P. Watson)]. 2. The Evidence at the Hearing 16. Dr. Steven Ross is one of the two experts approved by the Joshua Intervenors and hired by the Little Rock School District pursuant to Section 2.1.1 of the Revised Plan. Dr. Ross is a Professor of Educational Research and Director for the Center of Research and Educational Policy at the University of Memphis. Dr. Ross is deeply involved in working with school districts, primarily urban school districts, on how to develop and to evaluate programs and how to address the needs of children at-risk. He has worked with the Memphis, Nashville, Detroit, Atlanta and Little Rock school districts. [Tr. at 538-54l(Ross)] 1 7. Dr. Ross identified an educationally reasonable approach to promoting participation by qualified African American students in advanced placement and other enriched courses and implementing programs to assist these students to be successful. He defined a \"qualified\" student as \"a student who has a reasonable chance of benefitting, a reasonable chance of success.\" Identifying such students would involve use of \"archival data in Little Rock that would have shov.,n the success rates of students in advanced placement courses, in honors courses that are at different levels of achievement on the state test,\" as well as 1;be views of principals and curriculum specialists A: 1JOSHUA.OPP -10- in the District \"who have had experience with African American students and white students who are at lower or higher ynds of the continuum on ability, with suggestions for what type of students ... \" would have a reasonable chance of success if admitted to an advanced class. With this \"combination of science and reason\" he would try to help the school system\" to develop some selective cutoffs or some systematic approach for decidingwhichAfrican_American students were, \"qualified, which were likely to benefit\". For students with test scores at the lower end on statema11dated standardized tests, his advice would be admit them to advanced classes ''on a more selective level,\" that is .. considering factors such as prior grades, family support, and motivation. [Tr. at 542-547 (Ross)] 18 . In the context of section 2. 6.2 of the Plan, addressing \"implement[ ation] [ of] programs to assist African Americans in being successful in honors and enriched courses and advanced placement courses, \" Dr. Ross gave the following testimony [ Tr. at 548]: My approach would be, for students who are entering a course, in advanced course or an honors course, AP course or advanced course, to ensure=-the J(!rm ]Ve use in educational psychology is scaffolding meaning support, because the histmy th.at that student who is at basic hash.ad is struggling to succeed in a regular course. Imagine if you struggle to run a mile, and then all of a sudden you asked to run five miles. Chances are you are not going to do better at that five mi !es; you are going to struggle more. So I would want to provide support systems that can do everything possible to ensure that students who we consider qual~fied can benefit. Examples would be Saturday classes, which cn'e used in a lot cf districts, extended day, peer coaching, smaller class sizes, computer -assisted instruction that gives extra support, programs with families where parents are not taught to tutor, but parents are taught how to help their children get the work done at home, courses on how to study. Th.ere 's a range of support systems that can increase the chances that  an at risk child or adolescent can do well in advanced courses. 19. Dr. Ross testified that he wound not advocate placing students at the lowest leveis of state test courses into advanced placement courses without the kinds of programs he described. [Tr. A: VOSHUA. OPP -11 - at 549] 20. The approach described by Dr. Ross grows out of the provision in Section2.6 of the Plan for promoting participation of \"qualified\" African American students in advanced and .enriched courses a.rid the provision of Section 2.6.2 of the Plan which requires implementation of programs to assist these students \"in being successful\" in the enriched and advanced courses. The paragraphs which follow show: (a) the activiti~s required of the LRSD to promote additional participation of African American students in advanced programing were not carried out, or, were cursory in nature; (b) LRSD has not demonstrated an .increase in participation in advanced and enriched classes, comparing the totality of such programming prior to and during the Plan period; ( c) LRSD adopted, during the Plan period, criteria for admission to Pre-.4.P and AP classes which allow any student regardless of test scores and prior performance to select such classes, without an individualized consideration of the student's ability to benefit; and (d) LRSD had, during the Plan period, clearly inadequate \"scaffolding\" to assist lower performing students \"in being successful\" in advanced and enriched classes. 21 . The LRSD asserted that it fulfilled its obligation of \"a training program during each of the neA'1 three years designed to assist teachers and counselors in identifying and encouraging African American students participation .... \" in advanced placement and honors and enriched courses. [Section 2.6.1] However, there was no evidence of such \"a training program\" for\" teachers and counselors\" \"during of the .. three years of [the Plan.]\"; [Tr. at 186-89 (Faucette)] 22. Ms. Patricia Watson has served as a guidarice counselor in the LRSD for approximately 28 years, 23 years at Central and 5 years at Hall. She was the lead counselor at Hall during the term of the Plan. [Tr. at 100] She did not recall any specific \"training program\" each year of the Revised A. 1JOSHUA. OPP -12- 1') f. -  Desegregation and Education Plan which was designed to train \"counselors in encouragmg pa.i.--ricipation of African American students\" in Pre-AP and AP classes. [Tr. at 101] Ms. Watson further testified that although the director of Guidance and Counseling for the LRSD conducted monthly in-service training sessions between 1998 and 2001 , she could not recall any training relating to encouraging participation of African Americans in Pre-AP and AP classes. [Tr. at 103 -04] 23. When the subject matter of encouraging participation of i\\frican American students in advanced and enriched courses was raised by a LRSD administrator, the presentation was brief and proforma [Tr. at 90 (C. Norman)]; [Tr. at 102 (P . Watson); [Tr. at 473 , 490 (J. Carter)] 24. Prior to the advent of the Revised Plan, and continuing through the first year of the Plan, the types of advanced and enriched programming offered in the LRSD included advanced placement classes, as well as honors and enriched classes. Effective with the second year of the Plan (1999- 2000), LRSD utilized the categories of\"Pre-AP\" and \"AP\"_to encompass the prior categories of AP, honors and enriched. [Tr. at 3 76, 11/20/01 (Lesley); CX. 869, p. 18, 29] An accurate determination of any progress in increasing participation of .African American students in advanced and enriched programming requires consideration of this change. Merely reclassifying students who were in honors and enriched classes as advanced classes does not qualify as real progress in attaining the goal of Section 2.6. The District did not cite any actions that it had taken to promote an increase in participation of .African .American students in advanced programs. The District's plan is to increase the number of AP courses and Pre-.41' courses that are available and to cutout other courses so that the result would be more students would be forced to take Pre-AP and AP courses. 25. As evidenced by p. 3 8 of the March, 2001 Report, the greatest numerical increase of African .A.merican pupils in .41' courses, 154, ocqmed when honors and enriched courses were ended A:'JOSHUA.OPP -13 - after the 1998-99 school year. At the same time, the \"other\" numbers increased by 160, from 936 to 1096. This mefil!S that the proportion of white students enrolled in .AP courses actually increased. The chart on p. 38 of the 2001 Report reflects that African American students assigned to .AP courses fell from 37% in 1997-98 to 35% in 2000-01. The reality therefore is that whatever changes took place in AP, the disparity which existed in 1998 continued at least through Ivfarch, 2001 . ' 26. At the outset of Revised Plan implementation, the written criteria for enrollment in Pre- .AP and AP courses included multiple factors such as \"1. High-level reading comprehension and writing skills as evidenced by norm-referenced test data and classroom performance\" and \"4. 'B ' average and above in regular-level class.\" [CX 719 (Reg. IHCC-R; Tr. at 49 (Norman); Tr. at 560 (J. Mosby)] However, in approximately January 2001, the LRSD revised the criteria so that thereafter there would be, basically, a free choice of the more rigorous advanced and enriched courses. [Tr. at 86 (Norman); Tr. at 473 , 498 (Carter)] 27. In 2000-01 , 65% of the enrollment in AP courses was white [Tr. at 74 7 (Lesley)] roughly double the proportion of white enrollment in the LRSD. The free choice approach promoted the attendance of additional white students in classes disproportionately white. 28. As indicated, Dr. Ross testified that the availability of a BROAD RANGE OF Sl.JPPORT PROGRAM (\"SCAFFOLDING\") IS A.N ESSENTIAL ELElVlENT OF AN INl:TIATIVE WHICH PLACES POORL YPERFORMING STUDENTS IN ADV A.\"NCED Ai\"'i-U ENRICHED COURSES. See par. 18. LRSD vVRITTEN STA.l\"IDARDS A.RE TO THE SAlvlE EFFECT [CX. 719, Policy IHBDi\\., IHBDA-R, TIIBDA-R2]. However, LRSD's implementation fo its standards, required as to advanced and enriched courses by Section 2.6.2 falls short. (a) August 1, 2001 during the hearing conducted by Judge Wright, Associate A-VOSHUA.OPP -14-   Superintendent for Instruction and Bonnie Lesley and Ms. Sadie Mitchell, Associate Sup.erintendent for School Services, could not provide concrete information on the implementation of Student Academic Improvement Plans (Si\\IPs), or other . . interventions for students requiring additional assistance to satisfy learning standards. [Tr. 8-1-01 , at 609, 18 to 611, 23 (lviitchell); at 679, 18 to 684, 4 and 736, 17 to 739, 18 (Dr. Lesley)] (b) The LRSD provided no information on the actual availability of SAIPs for poorly performing students entering .Pre-_A.P and AP courses during the term of the Revised Plan, during the most recent hearing. ( c) The support programs actually available for Pre-_A.P and AP students, identified at the hearing, were well short of those identified as necessary by Dr. Ross and the LRSD in regulation IHBDA-R. [Tr. at 93, 95, (C Norman); 49 1-92, .523, 524 (J. Carter); 563-68 (J. Mosby); 743-44 (Lesley)] C. The Obligation to Address Barriers to Participation In AP and Honors and Enriched Courses 29. During the .three-year Plan period, the four Associate Superintendents served as the District's Compliance Committee with respect to the 1998 Revised Desegregation and Education Plan. Associate Superintendent Junious Babbs coordinated their efforts. The group was to oversee the overall compliance effort with the terms of the Plan, with each associate retaining primary- responsibility for those aspects of system operations within his/her normal area of responsibility. The compliance committee had the primary responsibility for the identification and removal ofbarriers to participation in advanced and enriched courses (and extracurricular activities). [Tr. at 130 (Babbs)]; A: \\.JOSHUA. OPP -15- (See also Court Ex. 544; CX. Ex. 869 (March 2000 Report) at 1-2]. 3 0. The LRSD described the compliance committee and the responsibilities of the associate superintendents as follows in the March 2000 Compliance Report (at 1-2, emphasis added): The Associate Superintendents of Administrative Sen1ices, Instruction, Operations, and School Services and the Special Assistant to the Superintendent comprise the \"Compliance cmd quality Assurance Committee. \" The committee has responsibility for the development, implementation, oversig,1t, review, and revision of the compliance program. The compliance program includes any programs, policies, and/or procedures iiecessmy to ensure that the District.f11[fills all of its obligations under the Revised Plan. n1e committee meets weekly to discuss compliance issues and to discuss plan implementation in their respective areas. The compliance philosophy is based cm internalizing the Revised Plan through the performance responsibilities of the respective organizational divisions. For exmnple, the instruction division is responsible for integrating the Revised Plan's requirements into development of the curriculum, staff development, and other similar junctions of that division. 171e associate superintendent who heads the division is the responsible person for the components of the Revised Plan that me appropriate.for his/her division. Through the internalization of the philosophy and the integration of the Revised Plan into the District's structure, the respective divisions proactively monitor compliance. The associa~e superintenrjents are responsible for ta!ci.ng appropriate action with re.spect to incidents of non-compliance and taking steps to prevent.future similar incidents of non-compliance. a. The Limited Assignment of Black Teachers to Advanced and Enriched Courses 3 1. The LRSD administrators who studied the existence of potential barriers to greater African American participation in AP classes identified the paucity of African American teachers as relevant. [Tr. at 71-72, 694-95 (Lesley)]; See also [Tr. at 184-86 (Faucette)] .Although significant progress could have been made by the manner in which teachers were assigned to courses by principals, [Tr. at 695 (Lesley)]; [Tr. at 46 (Norman)]; [Tr. at 517 (Carter)], little or nothing has been done. In Central High School, the \"flagship school\" [Tr. at 612 (Daugherty)] most of the .AP A:iJOSHUA.OPP -16- teachers were white. [Tr. at 291-296 (R. Horton); Tr. at 321,323 , 324 (C. Mercer); Tr. at 336-37, 338-339, 3.53~( J. fyforcer)] Black teachers were excluded, almost entirely, from advanced English teaching assignments [Tr. at 175-76, 78, 179-80 (Faucette)] The LRSD touts its participation in the \"Teacher of Color program.\" [Tr. at 671-72 (Lesley)] However, LRSD's evidence shows its participation in this non disuict sponsored program did not begin until the 2001-2002 school year. [Tr. at 736 (Lesley)] Moreover, the System could have only seven participants per year and the evidence was of high school placement of teachers only at Hall with, significantly, no participation at Central. [Tr. at 736-3 7 (Lesley)] [Ex. 826] . b. The Hostile Treatment of African American Students in Advanced Courses I 3 3. Black students emolled in Pre-AP and AP classes have been subjected to a variety of forms of harassment and other hostile behaviors by white teachers. [Tr. at 57., 70 (Norman); Tr. at - 102-3, 111-112 (P. Watson); Tr. at 291-93, 312 (R. Horton); Tr. at 321 -22 (C. Mercer)_; Tr. at 336- 38 (J. Mercer); Tr. at 401-406 (C. Payne); Tr. at 427-31 (D.J. Thames); Tr. at 440-442 (A. Thames)] Dr. Faucette also testified that counselors intentionally did not guide African American students into higher level classes. [Tr. at 208] 34. The impact of the harassment and hostile behavior identified in paragraph (33), supra, extends beyond the particular black student who is its victim. It is observed by other students in the class. Moreover, such incidents are a topic of discussion among students. [Tr. at 342 (J. Mercer); at 5 7 6 (J. Mosby)] The inevitable consequence of the harassment is to identify advanced and emiched courses as a hostile environment for black students and one which they should shun. [Tr. at 70 (C. Norm.an); Tr. at 632, 651-52 (Roberts)] A. 1JOSHUA.OPP -17- c. The Multiple Barriers to Access to the University Studies Prozram 3 5. The L~D and the university of _Arkansas at Little Rock jointly operate within the Hall High School facility the University Studies Program. Courses are \"co-tau!Zht bv Hall Hi!Zh School teachers\" and UALR personnel. [CX 869 (March 2000 Report) at 27] [underlining added for emphasis] This program began functioning in 1999-2000. Students are informed of this option on the course selection sheets distributed by the school system\" Grade 11-12 students may take a variety of courses for which they receive both high and college credit.\" [March 2000 at 27] The program is recognized by the LRSD to provide advanced or enriched courses as described in Section 2.6 of the revised plan. [CX 870 (March 2001 Report) at 46; [Tr. at 734 (Lesley)] [Two teachers per course represent a strong commitment to promoting the academic achievements of already high achieving students.] 36. In order to emoll in this program, a student must pay for each course taken one half of the nonnal tuition charged for the comparable course at UALR and for related expenses. [Tr . at l 09- 110 (P . Watson)]; [Tr. at 730 (Lesley)] 37. \"To be eligible to participate [in the University Studies Program], students must have a minimum grade point average of 2.5 on at least 50% of the college preparatory courses; or a minimum overall grade average of 3. 0; or a minimum score of at least 21 on the ACT.\" [March 2000 Report at 2 7] 38. The evidence cited in paragraphs 3~ through 37, infra, and 39 through 44, supra, shows that the program operates in a manner which promotes racial segregation within Hall High School, due in large part to the financial barriers created by the tuition and related expenses requirement and by the ACT score requirement. A. \\JOSHUA.. OPP -18- 39. The enrollment of Hall High School was approximately 80 to 90% as of 2001 -2002 school year. [Tr. at 106 (P Wat son)] The racial makeup of the University studies courses was as follows in the years 1999-2000 and 2000-2001 : 99-00 00-01 Total Enrollment 136 162 AA(%) 79(58%) 57(35%) Non A.A.(%) In Cour ses 57(42%) 105(65%) 40. These data show ( a) in 2000-2001 the number of African American students participating declined by 22, 28%; (b) in 2000-2001 the number of non A.frican American students increased by 48, 60%; (c) in 1999-2000, the percentage of white students in the program exceeded the percentage of white students in Hall High School by two times; ( d) in 2000-2001, the percentage of white students in the program exceeded the percentage of white students in Hall High School by three times; ( e) the in-school segregative effect of the program greatly increased in the second year of its operation. [March 2001 Report at 46] 41. TheLRSD reported ACT results by race for the years l. 997-1998; 1998-1999; 1999-2000 in the March 15, 2001 Report. [at 48] These data show that the average \"composite score\" (on the four sections of the ACT for white students for the three school years was respectively; 22.2, 22.5. and 21. 5. In contrast, the average \"composite score\" for African American students for these three years was 17.2, 17.2, and 17.3. These data provide some evidence the ACT of the alternative criterion for entry into the University Studies Program had significant racial impact. 42. The LRSD did not include in either the March 2000 or March 2001 Report data on grade point averages at Hall High School which would allow an analysis of the racial impact if any of the GPA standards selected for use in admission to the University Studies Program. A:JOSHUA .. OPP -19- 43 . Two types of evidence in the record provide a basis for concluding that the racially - segregated enro~ent of the University Studies Program is attributed at least in part to the requirement that students pay partial tuition. (a) Povehy Index in LRSD - According to an exhibit offered in this case by the LRSD, in the three years of the Revised Plan, 68% of the Black students enrolled in the District and 22-24% of the white students were eligible for free or reduced lunch. Court Ex. 73 l (b) Many witnesses agree9 that the tuition requirement would have a racial impact in the LRSD in view of the pattern of family income by race. [Tr.110 at 110 P. Watson)]; [Tr. at 532(J. Carter)]; [Tr. at 602 (Strickland)]; [Tr. at 605-610(Daughtery)]; [Tr. at 624-627(Roberts)]; [Tr. at 732 (Lesley)] 44. The March 200 l Report ( at 46) sets forth the racial makeup of the University Studies courses for 1999-2000 and 2000-2001 . However, neither the March 2000 Report nor the March 2001 Report contain any indication that the LRSD considered or analyzed of or analyzed vvhether the admission and tuition requirements of the University Studies Program promoted segregation. This silence occurs in the face of Section 2.1 (\" .. to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of LRSD and to provide an equal educational opportunity for all students attending LRSD schools\" and Section 2.6 \" .. to ensure that there are no barriers to qualified African A,.mericans .. '} 45 . In the instance of the University Studies Program, there is no evidence of the Compliance Committee, or Associate Superintendent Bonnie Lesley \"proactively monitor[ing] compliance.\" d. Other Barriers and Broken Promises as Shown bv the March. 2000 and A: IJOSH[h!... OPP -20- 2001 Reports 46. The 2qoo Report addressed the Talent Development Plan as a program to ensure the enrollment \"high performing students in advanced classes.\" [Tr. at 28-30] There is no reference .made in the final rep6rt of the Talent Development Plan. The Talent Development Plan has not been demonstrated to be in existence in practice. The principal of Franklin School, Ethel Dunbar, [Tr. at 588] and Pcl-t Watson, Counselor-at Hall High School [Tr at 104-105], were unaware of this program. This is likely because the Talent Development Plan was repudiated by Dr. Lesley. It involved a commitment to a project called AVID. Project AVID which was encompassed with the Talent Development Plan but has never been implemented because of its purported high costs and because the District did not get a grant to fund it [Tr. at 7 4 7 (Lesley)] The 2001 report makes no reference to either the Talent Development Plan or Project AVID . The 2000 Interim Report, in lamenting the fact that it did not get an AVID grant said, \"these programs would have assisted the . . District in its goal of increasing minority participation in higher level courses, including the Pre-AP courses at the middle school level.\" (p. 30) 4 7. The Interim Report also promised implementation of an Accelerated Academic Student Academic Program (AS.A.P), a prin1ary purpose of which was to radicallv narrow the achievement i;rap between Afucan American and white students. (p. 31). The 2001 Report makes no reference to the ASAP program, hov,rever, ASAP vanished. On p. 33 of the Interim Report, there is a note that \"all program components are incorporated in t4is draft.\" Later on the page, the olan was identified as beini;r tentative and dependent uoon submittirnr a oroposal for fundini;r from the federal i;rovernment. On p. 34, it is clear that it is simply a proposal: \"the District will also investigate other possible sources of funds for the other four middle schools.\" A:\\JOSHUA.OPP -21 - 48. The 2000 Report proposed an English I/II Pre-AP Workshop on a voluntary basis for teachers. This prop~sal did not focus uoon African American students in oarticular. It allowed high schools the option, for two vears. of offering double period English program at both the regular and Pre-AP levels. The 2001 report indicates that the workshop was instituted at several schools during 2000-01' and that as ofJanuary, 2001 , the optional program would continue at one of the schools through the ne;,.1: school year. Principal Carter of McClellan indicated that his teachers chose not to participate in this program. This was not a required program and cannot be said as a district initiative designed to promote and increase partjcipation in Al' and Pre-Al' programs. The District presented no data which reflected the benefits of this workshop to African .American Students. [Tr. at 525-526 (J. Carter)] 49. The 2001 Report mal\u0026lt;:es reference to a \"International Baccalaureate Programme\" at Cloverdale lvliddle and McClellan High Schools. [p. 34] The IBP was proffered as a program for increasing African .American participation in AP and Pre-Al' courses. According to Principal Carter, the program was designed to promote enrollment of African American children into a more rigorous curriculum and to attract white students to the school. It was dependent upon non district funds for its creation and operation. The District wrote that \"If this grant is funded . . the International Baccalaureate Programme courses will be another category of advanced and challenging courses available to students and their enrollment will be tracked and analyzed along with the AP and Pre-.A.P and University courses. (p. 34). 50. The IBP proITTam does not overate and was not funded I 1. Principal Carter testified that Dr. Bonnie Lesley opposed the program because she thought it was not a \"good mix\" for the McClellan student body. [Tr. at 529, 530] Dr. Lesley did not contradict :i\\1r. Carter's statement! A: ;JOSHUA.OPP -22- 51. The District's support for the University Studies Program whi~h favors white students is to be compared, the .IBP program which in design gave some favor to Black children. The administration strongly supported one with District funds and local college support but it did not support the other one, the IBM, with financial or administrative level support. 52. In the 2001 Report, the District notes that in the 2000-2001 school year it added two AP courses, Human Geography and Economics in order to promote African _American participation in AP course. (p. 33) The Human Geography program which was offered began as a majority white program, nine whites, five Blacks (se~ p. 38). The Economics program apparently did not \"make\" in 2000-2001 because there were no students reported as being in the class. Justin Mercer attempted during the 2000-20001 school term to take the course and was refused because there was no one to teach it. [Tr. at 352, 357] (Seep. 33) When one reviews the AP courses added, World History, Physics II, Science Pre-AP and Advanced Science/Theoretical II. Moreover, Advanced Science - Theoretical II, it is clear they were not being added so as attract and benefit more African American students. These appear college focused, i e, \"Central College.\" [Tr. at 365-66 (J. Iviercer)] 53. The LRSD asserted that it had fulfilled its obligation of Section 2.6.2 by \"imolementim2: programs to assist African American students to be successful in . and advanced placement courses. The Interim Report, (Page 39-40) does not identify any policies that it developed to assist African American students in being successful. The section speaks only to \"proQ:rams.\" The programs which are listed are College Preparatory Enrichment Program (CPEP); Academic Enrichment and Gified in Summer (AEGIS); South East Consortium for Minorities in Engineering (SECME); SMART, a summer program for about 200 students; School Based Student Support Teams; and English I and II Workshop - Pre-AP, CPEP and _I\\EGIS are not held out as being for the A:\\JOSHUA.OPP -23- purpose of assisting _African Americans in being successful in advanced courses. SECJ:vlE was a grant program for the purpose of preparing and motivating students in technical fields It had a goal of increasing the pool of minorities who were qualified for college studies in engineering, math and science. S:tvlART does not identify the students who will be served. The English Pre-AP workshops were optional. The school based support teams had the purpose of monitoring student achievement and providing support and necessary interventions to students at-risk of failure. The District did not present any monitoring reports are results of achievement regarding the school based support teams. 54. The March 15, 2001 Report did not address any of the programs identified in the Interim Report. Instead, it talks about gifted and talented programs specialists and facilitators. These programs are for the teachers who are provided opportunities for professional growth, and receive a publication known as Sharing the Good News. Because of their outlined training those teachers are expected to become resources for other teachers. 55. Other possible programs presented in the 2001 Report are briefly discussed again under this subsection a) Two courses, Human Geography and Economics were added to the curriculum for 2000-2001. World History and Physics II were added to the curriculum for 2002. Advanced Science/Theortical Research II was added to the curriculum for 2001. There is no showing of how these courses are directed toward the success in them for iLA. students. [CX 870, p. 33] b) The proposed International Baccalaureate Programme (IBP) ,;vas contingent upon finding which did not occur between 1998-2001 [e.g. pp. 33-34] (c) Middle School research and writing Pre-AP are not held out as programs to assist A:\\JOSHUA.OPP -24- (d) African A.merican students. Fiigl:). School Reading and Wri1ingWorksho-p Iis an optional program which Fair, Hall and McClellan opted to include in their schedules. There is no representation that the workshop was intended to assist A... frican American students at being successful in advanced courses. ( e) Teachers and couns~lor training has a goal to provide teachers with training to ensure that all students are successful in upper level courses. The funds for this program are provided by the State of Arkansas. This in-sen:ice training is required by the Arkansas Department of Education. (f) The 2001 Report refers to revision of Policy IKF/General Ed Graduation Requirements. This policy raised the recommended number of units for graduation to \"28\" including at least \"8 11 Pre-.A.P or A.P courses. There is no showing of how this (g) - will benefit African American students in being successful in AP courses. [ e.g. p. 30] The policies, programs and procedures in both the 2000 and 2001 Reports represent recitation of normal school activities, \"raising the bar\" for graduation and creating courses that will favor students in advanced courses who are already high achievers. The courses added may substitute for college courses. (h) ,There are no programs identified in either which are specifically designed to African iunerican students in being successful in advanced placement during the regular school year. (i) The SEC:ME Program operated for one year. [Tr. at 105 (P. Watson)] G) The other programs either were not implememed or were not supported by use of any A:\\JOSHUA.OPP -25- I data in either report. [e.g. ex 869, pp. 40-41 , ex 870, pp. 31-50] (k) The_ summer programs CPEP, SMART and .AEGIS have limi,ed enrolled. [Tr. at 73 8, 747 (Lesley)] (1) The District did not identify and present data which delineated participation in any \"scaffolding\" or \"support\" programs such as those described by Dr. Ross as being necessary to assist African .American students in being successful in advanced courses. [Tr. at 548,549 (Ross)] [See also Tr. at 465, 480 .. 490,492,499, 523,529 (Carter); Tr. at 88, 93, 95 (Non:nan); Tr. at 564, 566, 576 (Mosby); Tr. at 585 (Dunbar); Tr. at 747 (Lesley)] D. The Obligations to Promote Participation of Qualified African Americans in Extracurricular Activities 56. With respect to Section 2. 6, the lVIarcb 15, 2001 Report purports to show an increase in African American extracurricular participation between l. 997-98 and 1999-00, p. 2 7. The figures are not broken down by school, activity, race or gender. The general increase represents 122% for African Americans and 129% for non African American students. With respect to the District's chart on p. 28 regarding co-curricular acti,,ity participation, the aggregated data show an African American increase from 2579 to 3988. That reflects a 54.6~o increase. Non black participation, however, increased from 1222 to 1864, a percentage increase of 52.5%. The extracurricular activity and co-curricular activity general panici.pation therefore remained steady. 57. By LRSD presenting aggregated data, [Tr. at 740 (Lesley); CX. 747 [Babbs] the Court is not in a position to effectively determine whether the data reflect actual improvement in African .American participation in the respective schools. Accordingly, the anecdotal testimony of witnesses A: \\JOSHUA. OPP -26- d' becomes more relevant ,vi.th respect to determining whether the policies, programs or procedures which the District ~eveloped are working. The policies which the LRSD developed purportedly to meet the requirements of the Plan represent either revision of existing purported policies or codification of practices long in force. The policies which are applicable to the instant proceeding are: a) Policy JJR - Student Co-Curricular Exnacurricular Activities [CX Ex. 719] This policy requires that \"when disparities are identified in co-curricular activities, the principal will work with the school staff to develop a plan for improvement where possible.\" b) Policy JJIB -R 1- High Schooi Interscholastic Athletics  Cheerleading Drill TeanvPep Club [CX Ex. 719] This policy also requires that \"when racial disparities are identified in interscholastic athletic or spirit groups, the principal will work with the school staff to develop a plan for improvement where appropriate. It is also requires (5) that transportation will be provided to all students participating in athletic and spirit group activities.\" [Policy JJIB -R2 applies to the middle schools and essentially repeats the provision 111 JJIB-Rl] c) Policy JBA.-R NonDicrimination in Programs and Activities [CX Ex. 719] This policy requires each school to develop strategies to promote student participation in programs and activities and to ensure that there are no barriers to participation.\" It also requires the development and implementation of \"a plan for nondiscrimination in programs and activities at each school\" This policy does not include the required \"improvement plan\" notes in policies JJR and JJIB-Rl and R-2] d) Policy DFD-R2 Athletic Gate Rec~ipts cmd Admissions [ CX Ex 719] . A:'JOSHUA.OPP -27- This policy requires that \"in cooperation with the Activities Advisory Board (AAB ), there will be a compr~hensive athletic and activities plan developed by the District to address the needs of the students .... \" The steering committee will serve as staff providing technical assistance and support to the A.AB .\" 58. The District staff determined that there were disparities which they identified in cocurricular and e\".1:racurricular activities.1 The District staff who addressed the subject include the Associate Superintendent for Student Services, Sadie lviitchell, the Assistant Superintendent for Secondary Schools, Dr. Marian Lacey, Jodie Carter, Principal of McClellan High School, 1'1ls. Cassandra Norman, Principal ofFair High School, and Mr. Junious Babbs, Associate Superintendent for Administrative Services. These staff members acknowledged an awareness of racially identifiable activities and of disparities: Ms. Mitchell [Tr. at 261 , 262, 268, 269]; Dr. Lacey [Tr. at 790, 791]; Principal Carter [Tr. at 474,492, 493 , 502, 503]; Principal Norman [Tr. at 71, 72]; Mr. Babbs [Tr. at 13 3] . Other witnesses who testified that there were racial disparities with respect to curricular and ex\"1:racurricular activities were Ramona Horton [Tr. at 312, 313]; Michael Faucette, [Tr. at 199, 200, 201 , 203-206]; Crystal Mercer, a student at Central High School [Tr. at 322, 323]; Justin Mercer [Tr. at 386, 387, 388]. 59. The March 15, 2001 Report contains (at 28) under the heading Activities Advisory Board, the following content: \"At the ti.me of the District 's Interim Complicmce Report, a steering committee had been formed to organize an Activities Advis01y Board ('A.AB ') for the pwpose of 1The activities identified included, inter alia, baseball, cheerleaders, debate, future problem solvers, odyssey of the mind, student newspaper, mock trial, orchestra, quiz bowl, soccer, swim team, tennis, volleyball and yearbook staff. [Tr. at 136, 133-35 (Babbs); Tr. at 199-200, 203 (Faucette); Tr. at 261 -262 (Mitchell); Tr. at 358-360, 362-364 (Mercer)] A:\\JOSHUA.OPP -28- I} promoting, supporting and enhancing extracurricular activities cmd co-curricular activities at all schools. Th.e _A_,4B, comprised of District staff, pca-ents, student and convnzmi-ty representatives, be gem monthly meetings in April of 2000. Specific areas related to activities have been targeted for discussion and implementation. Th.e focus of these discussion has been on a disvropordnate number of African American students who do not hm,e the financial resoUJ-ces to participate in activities. Other areas of discussion and imvlementation include ... fun din'\u0026lt;!. accessibilitv~. Each caea has been discussed in connection with incl'easing swdentpca-ti.cipation with emphasis on assuring African American participation. [underlining added for emphasis J 60. Despite the finding of ~he AAB, there was no system budget account to assist a student for whom family finances was a barrier for participation in extracurricular activities. [Tr. at 802 (Dr. Lacey).] The system addressed the. acknowledged program by a patchwork of activities, not represented to function in all schools; moreover, Dr. Lacey testified that there was no systematic effort to publicize the availability of these funds. Associate Superintendent Babbs, who coordinated the efforts of the Compliance Committee, could identify no substantial activity undertaken by that body. [Tr. at 144, 146 (Babbs) - 3 to 5] 61. The District is obliged to address barriers to participation of qualified African Americans in extracurricular activities. Despite the LRSD's consistent emphasis on the differences between family incomes in the system's white and African families [e. 2: ., Poverty Income information CX 731], the record reveals a lack of any systematic effort to address financial barriers within the meaning of Section 2.6. 62. Ms. Sadie Mitchell, Associate Superintendent for School Services, never developed a plan for remedying disparities Oi imbalances in participation in exirn or co-curricular activities. [Tr. at 262] She left this to the discretion of the principals. But she excused their inaction by \"blaming the victim.\" They have \"choice\" she said. [Tr. at 268]. 63. Sadie Iviitchell was responsible for \"proactively monitoring compliance\" and \"taking A.\\JOSHUA.OPP -29- - appropriate action with respect to incidents ofnon-compliance . ... \" [Tr. a1 136, 138 (Babbs)] Ms. I:vlitchell testified to her shirking this responsibility [Tr. at 262-263 , emphasis added]: Q. You are awm-e. Let's just talk about the reality You were cnvare -you have , not heard the testimony. But you are cnvme, for instance, quiz bowl and debate, Odyssey of the 1vfind, vm-ious activities were all white, were you not? J A. Yes. Q. I see. Did you develop aplcmfor changing that? .. A. I did not develop a plan. The buildh1g principal did Q. Well, in the three years that the plan was in operation before the report seeking release from unitary status, did you have any occasion to prepare any writing reflecting that was shared with the Joshua lntervenors or the public reflecting what actions you would take to change those patt.ems? A. Q. A. Q. A. Q. I did not, because Joshua did not request a report through the formal compliance complcrint. You are suggesting that you only prepare requests or reports at Joshua's request, are you? I onlv respond to complaints from patrons, community, Joshua. ODA1s. and anvbodv else throu'?h formal complaints. So you never made an evaluation or assessment even of those things to determine the extent to which black participation was being minimized? I did not personally Staff members did. I see. Was there a plan of action developed by the Compliance Committee for dealing with the lack of black participation in acrivities like cheerleader and things like that? A. There was no plan developed by the Compliance Committee. The principals developed plans, along with the sponsors. 64. The LRSD presented as part of its case no such plai.-i by a principal or a sponsor. This included testimony that the myriad activities at Central High School had racially disparate A:iJOSHUA.OPP -30- participation, a problem not discussed at faculty meetings. [Tr. at 199-200, 207 (Faucette)] 65 . The LRSD reported that 90% of African American parents \"that expressed an opinion\" reported that they had activities available to their students. [Tr. at 773 (Lacey)] This answer does not address parental views regarding whether racial barriers to participation in school activities exist. African American school board member Iv.like Daugherty who has disassociated himself from the petition before the Court was unc?.mfortable with information being given strictly in percentages rather than in actual numbers regarding the survey. [Tr. at 614] 66. No District witness testifie.d that there was a specific plan, which the District through any representative, developed for addressing the disparities in e)rtracurricular and co-curricular activities. Some of the disparities were not the result of financial resources or the lack thereon by students. At McClellan and Fair many activities were not offered because of the lack of teacher sponsors and lack of staff member encouragement to students to participate. [Tr. at 477, 478, 49'.2, 533 (Carter)] [Tr. at 74, 92 (Norman)] 67. The District obviously did not follow policies JJR, JJIV and JBA-R because after disparities were identified, it did not develop an improvement plan in any area nor did it develop strategies to promote student participation in programs and activities to ensure that there were no barriers to participation. The school district plan commits the District to developing remedies and to promote participation. The school district delegates these responsibilities to the principals. This is contrary to the Plan in that compliance is a district administrative obligation. 68. Ray Gillespie, Athletic Director during the 1998-2001 school years addressed the problems which African _American students experienced in e\"\"'tracurricular activities. 69. He investigated an incident where a white coach acknowledged that he choked a black A: \\JOSHUA. OPP -31- Tl student at SW lYiiddle School. [Tr. at 573-576 (Mosby) (See also CX 771)]. Ms. Sadie Mitchell, - Gillespie's supervis9r, downplayed the incident saying she didn't think it was a real choking incident, but the coach admitted that he choked the child after he lost his temper. [Tr at 274-275] Mitchell's testimony reveals the attitude of the LR administration regarding compliance. She and the Compliance Committee would have profited by use of the experts, especially Dr. Terrence Roberts in addressing plan commitments. See paragraphs 126(a), (b) and (c). 70. Gillespie testified that it was a very severe offense. This occurred during football practice when other students were present. [Pp. 7-11 , Deposition ofR Gillespie] 71 . Gillespie cited similar incidents including a coach fighting an .African American student (pp. 15-17, Deposition of Gillespie) at Hall; and a white coach slapping an African American student at Mann 1v1iddle SchooL [Pp. 26-28, Deposition ofR. Gillespie] 72 . The same coach involved in the choking incident at SW Middle School also called an African American female student a \"bitch.\" [ Pp. 11-13, Deposition ofR Gillespie] 73 . Gillespie also testified that parents were upset at the middle school regarding Quiz Bowl, Band, Science Clubs and 9th grade athletics at the Middle Schools. (See CX. 770/772, p. 21 , Deposition ofR. Gillespie] 74. Several of the students explained their lack of encouragement with respect to participation in extracurricular activities. D.J Thames, a student at Fair High School, was discouraged by the repeated use of profanity by his Coach, Randy Rutherford [Tr. at 419-20] He also testified about the racially preferential treatment which Rutherford provided to white team players. [Tr. at 421-423 , 432] 75. Chris Payne, a student at Fair High School, testified that he was discouraged from A:VOSHC4..0PP -32- participating in Quiz Bowl by Ms. Pickering, a white teacher, who told him that he could not be on the \"A\" team [Tr. -~t 403-04]. 76 . Payne stated that his white Calculus Teacher, rvir. Wilder, refused to write a recommendation for him because he didn't think Payne was \"smart enough\" to attend Governor's School [ Tr. at 404] 77 . Payne also explained that Ms. Klais gave him a recommendation to a college which she wrote on a piece of notebook paper for him. He was aware that she had written recommendations for white students on school letterhead. [Tr. at 407] 78. Payne also testified that he was aware that Coach Rutherford \"cursed\" African American players but not white players. [Tr. at 414] 79. Crystal and Justin Mercer testified that they sought to participate in mock trial. They were discouraged from participation. [Tr. at 322-23 ; 386-389] Justin was also discouraged from participating in debate [Tr. at 3 61-62] and from starting a club, the purpose ofvvhich ,vas to promote interracial diversity at Central High School by a white teacher named :t'vfr. Meadows. [Tr. at 3.96-3 97] 80. Dr. Faucette sought to receive support for his creating writing club, but did not receive it from the principal. The club had a previous history ofracial diversity. [Tr. at 192-96, 229-30] E. The Obligations to Promote Participation of \"Qualified\" African American Students in Extracurricular Activities and to Ensure That There are No Barriers to Such Participation 81. In Section 2.6 of the Revised Plan, the LRSD promised to \"implement programs, policies and/or procedures designed to promote participation and . to ensure that there are no barriers to participation by qualified African Americans in e)rtracurricular activities .. . . \" The LRSD adopted several regulations identifying activities to promote compliance with Section 2. 6 of the Revised Pian A. :;JOSHUA.OPP ..,.., - .).)- ff .. regarding e:;,._'iracurricular activities. 82. There were segregated activities and apparent barriers to /tlrican .Americans participation in them. Section 2.6, implememing regulations, and the compliance structure created pursuant to Sections 2.13 , 2.13 .'l, and Section 6 of the Plan called for a practical response to these problems. The system defaulted. F. The Obligation to Provide Transportation to Students for Participation in After School Activities  83 . Section 2. 6.3 provides that the LRSD shall provide transportation to students ... to allow those students to participate in after school activities . . [CX. 870, p. 29] The 2000 Report does not address this provision. 84. The 2001 Report simply recites the number of extracurricular activity runs per day for high and middle schools with a notation that no \"elig:ible\" student has been denied. [p. 29] The - District does not define \"eligible.\" 85. The witnesses who addressed the transportation obligation included Ramona Horton [Tr. at 312-31 3]; Justin Mercer [Tr. at 358]; Pam Mercer [Tr.at 450]; [Tr. at 532 (l Carter)] [Tr. at 75 (C. Norman)] They testified that the District did not provide transportation for a number ofactivities. G. The Obligations to Ensure that There is No Racial Discrimination In the Provision of Guida.nee and Counseling Services and (H.) To Provide More Eguitv in Academic Honors, Awards and Scholarships 86. The 2000 Report (at pages 81-82) promises that the LRSD will implement programs, policies, and procedures designed to ensure that there will be no racial discrimination in the provision of guidance and counseling services. The report promises at page 81 to continue monitoring of school district equity issues with respect to honors, awards and scholarships. The report states that A:VOSHUA.OPP -34- \u0026lt;I, \"continued strategies are addressed to increase the number of African Americans who pursue more rigorous academic course work and receive scholarships.\" 87. The report further refers to Section 2.11.1 by referring back to 2.11. 88. The 200i Report (at p. 160) simply recites the scholarships awarded at the high schools by numb.er, at p. 160 and by dollar value, at p. 161. The District does not recite any activities or programs that it engaged in to mee! the provisions of Section 2.11 at page 160, other than a survey which purported represented the opinion of94% of all parents \"that help and f!uidance was available to their child.\" There has been no dispute that counseling services were \"available\" for they have always been. The District did not present any testimony regarding how it planned to modify the delivery of policies or procedures as provided by, and to meet the objectives of, Section 2.11. Nor did it delineate the work that it did in an effort to provide more equity for African American students in academic honors, awards and scholarships. Indeed, the District did not present the data which delineated scholarships awarded to African American an_d non African American students on an academic basis. 89. \\Nith respect to honor graduates, .African American students constitute 66% of the high school emollment. In 1999-2000, they received 32% of the honors. The only strategy to improve the number of African American honor graduates is to have them elect to take more AP courses. 90. The Hall High School counselor, Ms. Pat Watson, agreed that counseling services were utilized in the 1999-2000 school term in an attempt by school district administrators to place two white students ahead of a Black student ,1/ith respect to the school's valedictorian position. [Tr. at 115-li9 (Watson)] Joshua .vas instrumental in preventing this intentional racial practice from occurring. A:VOSHE4..0PP -3 5- 91 . Junious Babbs, the Associate Superintendent responsible for counseling services, made no findings regarding student access to higher education opportunity being improved by either guidance services or by A.P courses. He did not review or monitor the annual guidance counselor's reports. [Tr. at 148-'49] 92. Ramona Horton, an involved parent in the District, testified that her children did not get help from the counselors. [Tr. at 30?] In her opinion, the delivery of counseling services was \"QQQL\" [Tr. at 314] She did not participate in any survey regarding the delivery of counseling services in the District. [Tr. at 314] 93 . Crystal Mercer stated that she received no assistance from her counselors nor any encouragement about enrolling or remaining, after being enrolled .. in AJ\u0026gt; classes. [Tr. at 319-320, 324] 94. Justin Mercer stated his counselor suggested that he should not take AP Economics when he wanted to in1prove his GPA [Tr. at 3 52] His counselor told him that he could not take AP Economics because there was no teacher qualified to teach it and there was not enough student interest for it. He later learned that white students had not been similarly discouraged when he received his ne:;,,,'i: class assignment from a white friend had AP Economics on his schedule. [Tr. at 352-353] Mercer's counselor told him that he could not enroll in AP Physics because he did not meet the requirements to take it. [Tr. at 3 54] Mercer's counselor was white. [Tr. at 3 71] 95. The counselors at Central told Justin Mercer when he arrived at Central that he should not take A.P and Pre-A.P courses. The reason given was that he had been in regular courses in Junior High School and that the teachers were familiar with his transcript. [Tr. at 377] Mercer's counselor also discouraged him from taking . L\u0026gt;J\u0026gt; Physics II because of his background. [Tr. at 384] A: 1JOSI-TU..4.. OPP -36- 96. Chris Payne, a student at Fair High School, testified that his counselor informed him that one of his teachers ;was prejudiced. [Tr. at 403] 97. D.J. Thames, a student at Fair High School, testified that his counselor did not assist him in getting into the College of Wooster. [Tr. at 418] Thames' counselor discouraged him from taking AP English. [Tr. at 426] His counselor also advised him to drop Ms. Pickering a.fcer having been in her class. [Tr. at 429] 98. During the 1998-99 and 99-2000 school years, McClellan had larger numbers of African American students than Central High School enrolled in AP courses. Benveen the 1997-98 and 1998-99 school years, McClellan had the same number of black honors graduates as Central. The dollar value of scholarships for African American students was more than twice as much as the Central students. During the 1999-2000 school year, when the African American numbers favored Central by 2 to 1, the scholarship an1ounts favored Central students by more than 5 to 1. ThiSTeflects the second class status/perception of McClellan High School in comparison to Central. CENTR4.L HIGH SCHOOL 98a. when i\\frican American parents filed the class action lawsuit seeking to desegregate the Little Rock public schools, the school district offered Central High School as the point at which to begin a plan of gradual school desegregation. Aaron v. Coover. 1-13 F. Supp. 855 (ED. Ark 1956). The plan was designed to delay the process for as long as possible pursuant to Brown v Board of Education of Toueka. Kansas 347 US. -183, (195-1), and to involve as few minority race students as possible. The Court of Appeals affirmed 243 F2d 361 (8th Cir. 1956). The District was select in choosing the first 1 7 Black students chosen by the District to attend Central, only nine (the Little Rock Nine) of whom braved the adversity of the opposition and attended Central. A: 'J0Sffi.L4..0PP -,~ -.J / - .98b. In 1972, :5fteen years after Central High School had become a symbol of public resistance to the p.rip.ciple of school desegregation, :lvlichael Faucette, an African American began his high school education at the school. He completed grades 10 through 12 at the school and graduated in 1975 . During his fenure, students were ability grouped for academic purposes into three \"tracks.\" There were other academic groupings as well. Michael Faucette was placed in track one, the track for those students said to be the strongest academically. [Tr. at 166 (Facuette}] ,, 99. During Michael Faucette's three years in the school, he was the only African American male student in his classes. He was oft.en the only African ivnerican in his class. The total enrollment of the school at that time was approximately 65 to 70% African American. There were only eight black faculty members in Central during the period of Michael Faucette's attendance at the school; he had only one black teacher during his three years. There was only one black cheerleader during Faucette's attendance at Central. [Tr. at 166-67, 204-05 (Faucette)] 100. The school system did not recognize the academic achievements of its black high school graduates in this period. After graduating from Central High School, Mr. Faucette entered the University of California at Berkeley. After one of his classes, during his freshman year, his professor told Faucette it was an honor to have a student in his class who had earned a test score as high as 11r. Faucette had earned on one standardized test. No one from Central High School or the LRSD had complimented Faucette on this achievement prior to his leaving the District. [Tr. at 167-68 (Faucette)] 101. During the course of his post-secondary education, Michael Faucette earned two Bachelors degrees, a Masters degree, and a PhD. He taught at the college level at the University of Washington and the University of Georgia. Vlhile.at the University of Washington, he developed a A:1JOSHl.L4.0PP -38- 11 program designed to help high school students succeed at the higher education level. [ Tr. at i69 (Faucette)] 102. By 1998, the 40th anniversary of the Central High School \"crisis\", Dr. Faucette had determined to return to Little Rock to teach in the community in which he had secured his education. _t,,.s part of his application process in the LRSD, he visited Central High School in February, 1998. The then principal, Rudolph Howo/d, accompanied Dr. Faucette to visits to four classrooms in the school. He visited two AP classes in which the students were all white; he visited an honors class in which the students were two-thirds white; he visited a. regular English class in which there were, in contrast, only tw,o white students. The three all white or identifiably white classes had white teachers and the class with only two white students had an African .American teacher. Dr. Faucette commented to Principal Howard about the makeup of the classes. observing that the presence of two-all white classes surprised him; Mr. Howard did not reply. [Tr. 169-71 (Faucette)] 103. Dr. Faucette began teaching at Central High School at the start of the 1998-99 school year. He was assigned to teach one remedial class and regular English sections in the 12th grade. In that year, in the 12u1 grade, there were nineteen (19) English sections, some advanced placement sections, some regular English sections and two sections with a remedial designation. Dr. Faucette observed that the advanced classes - tracks - were composed almost entirely of white students and, as to location, concentrated on the third floor of the building. In contrast, the regular and remedial sections - tracks - were \"primarily black\" in student makeup and located on the second floor of the building. This pattern of the racial make-up of the various categories of sections and their locations continued \"virtually unchanged\" during the nex\"t two school years (the second and third years of the Revised Plan) . [Tr. at 172-75, (Faucette)] Other evidence revealed that there were few black students A.\\JOSHUA.OPP -39- 11,l in advanced placement classes during the period of the plan. [Tr. at 303 (R. Horton); at 319 (C. Mercer); at 330 CJ.Mercer)] 104. During the three years of the Plan, the makeup of the cadre of English teachers in the school was eight (8) white and eight (8) A,frican American persons, however, African American teachers taught no (98-99) or few (99-00, 00-01) advanced sections ofEnglish in the school as shown by the following chart: 98-99 99-00 2000-01 Total Eng sections 69 88 84 Total advanced secs 23 36 37 Adv sec taught by Blacks 0 2 4 English teachers 8W/8B 8'W/8B 8w/8B [Tr. 1 75-76, 178, 179-80, (Faucette)] 105. Dr. Faucette, a teacher whose excellent qualifications were obvious, did not teach even one advanced section of English during the three years of the Plan, despite the fact that these sections nu    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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LORENE JOSHUA, et al KATHERINE.KNIGHT, et al ORDER FILED U S DISTRICT COURT EASTERN DISTRICT ARKANSAS PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS Attached is a transcript of the hearing held Friday, last (July 12). Since time is short (the evidentiary hearing will commence next Monday, July 22), this transcript, rather than a detailed, separate order, is adopted as the order of the court (court solecisms and all).  IT IS SO ORDERED this 16th day of July, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE UNITED STATES DISTRICT JUDGE WIT~ f U/4 58 AND/OR~ ON /f7i\"),,- BY~7,,...~...-~~ 1 2 3 4 5 6 7 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., Defendants. MRS. LORENE JOSHUA, et al., No. 4:82CV00866WRW Friday, July 12, 2002 Little Rock, Arkansas 8:30 a.rn. 8 Intervenors. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHERINE KNIGHT, et al., Intervenors. TRANSCRIPT OF HEARING BEFORE THE HONORABLE WILLIAM R. WILSON, JR., UNITED STATES DISTRICT JUDGE APPEARANCES: On Behalf of Little Rock School District: MR. CHRISTOPHER HELLER, Attorney at Law MR. JOHN C. FENDLEY, JR., Attorney at Law Friday, Eldredge \u0026amp; Clark Regions Center, Suite 2000 400 West Capitol Avenue Little Rock, Arkansas 72201-3493 On Behalf of Pulaski County Special School District: MR. M. SAMUEL JONES, III, Attorney at Law Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Building 200 West Capitol Avenue Little Rock, Arkansas 72201 Christa R. Newburg, RMR, CRR, CCR United States Court Reporter [Continued) 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 APPEARANCES CONTINUED: On Behalf of North Little Rock School District: MR. STEPHEN W. JONES, Attorney at Law MR . GUY W. MURPHY, JR ., Attorney at Law Jack, Lyon \u0026amp; Jones, P.A. 425 West Capitol Avenue, Suite 3400 Little Rock, Arkansas 72201-3472 On Behalf of the Joshua Intervenors : MR . JOHN W. WALKER, Attorney at Law John W. Walker, P.A . 1723 Broadway Little Rock, Arkansas 72206; and MR. ROBERT PRESSMAN, Attorney at Law 22 Locust Avenue Lexington , Massachusetts 02421 On Behalf of the Knight Intervenors: MR. RICHARD W. ROACHELL, Attorney at Law Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 RECEIVED JUL J 8 2002 OFFICEOF OESEGREGATION MONITORING Proceedings reported by machine stenography and displayed in realtime; transcript prepared utilizing computer -aided transcription. Christa R. Newburg , RMR , CRR , CCR United States Court Reporter 2 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 (Proceeding at 8:30 a .m. , as follows:) THE COURT : We ' re here this morning for a short hearing in the Little Rock School District against the Pulaski County Special School , et al . It's Case No . LR-C-82-866. I might first introduce counsel and the people present to Ms. Christy Conrad . Would you stand up, please , ma ' am? 3 She is my new lawyer on this case, commenced to work this morning. She will be the law clerk especially assigned to this case. That ' s Ms. Christy Conrad. We might start with Mr . Walker. I got my letter off late yesterday, and if you don't mind outlining for me briefly what your two rebuttal witnesses will say . Ms . Marshall -- go ahead . If you don ' t mind , come to the lectern . When we start the trial next week , week after next , we'll have mikes on the table , but I don ' t have them now . MR. WALKER: Your Honor , my I inquire whether you received my letter? Apparently our letters -- THE COURT : I did get a letter from you. I've got it right here, as a matter of fact. I don ' t believe it addressed that issue. If it did, I overlooked it . Like I say, my letter got out later than I thought. MR . WALKER : Your Honor, it does attempt to address it on page 2, paragr aph four , sub six . THE COURT : Paragraph four? MR. WALKER: Sub six, the bottom of the second page. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 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 It begins, ttplaintiff suggests that if nottt -- THE COURT: All right. Let me read that. I do have this letter, and I've read it. That's another one of my lawyers. We're all working on this case, and she needs t o be able to hear us back in chambers, and she has just announced, Mr. Walker, she couldn't hear you . So both of us need to speak right into the mike. MR. WALKER: Yes, sir. THE COURT: I have read that. Can you be a little more specific with us? MR. WALKER: Dr. Lesley in her testimony indicated that the evaluation process was not flawed , in part because it was -- it involved the ODM, Mr. Gene Jones specifically, and Ms. Ann Marshall to some extent. And she submitted an exhibit that relates to or was attempting to relate to the participation of the ODM, in order to demonstrate that involvement. We wanted to establish what ODM's role was and also the fact that ODM at all times through Mr. Jones had expressed difficulty and problems with the evaluation approach that was being used by the district and the lack of evaluations. THE COURT: And Ms. Marshall and Gene Jones are both going to address that issue? MR. WALKER: There were two separate points where -which differ. Ms. Marshall can only relate to an exhibit that Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 4 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 Dr. Lesley introduced where she made reference to, if I understand to be correct, where she made reference to the comments and the like that had been made about in criticism or critique of a document which she had prepared, and it would be our intention to show that that was misrepresentative of the involvement of ODM. THE COURT: All right . Thank you. MR. WALKER: And the other will be Mr. Gene Jones, and Mr. Jones was sometimes invited to some of the sessions 5 that dealt with the subject. And his -- the way his participation was presented, we would address, and also the comments and the like that he made or his observations from the perspective from which he sits we thought would be useful to the Court in explaining the overall evaluation. The ODM was supposed to have a special role in relationship to the whole process , and we would like to at least take that time to put that in. THE COURT: All right. I'll hear from Mr. Heller, see if he continues his objection in view of that. MR. HELLER: Good morning, your Honor. We do continue our objection. Mr. Walker didn't identify any of the exhibits he's talking about. Dr. Lesley's testimony , which, as we've said, could have been anticipated in its entirety because it didn't concern anything other than the compliance reports which were filed by the district, her testimony regarding ODM Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 was minimal. As I recall, all she did was point out that an ODM monitoring report which is in the record did not require anything other than what Dr. Lesley was doing. That report is in the record. Mr. Walker had a chance to question Dr. Lesley about it, and there shouldn't be any issue about that. With regard to Mr. Jones , all that was said about him was that he was a participant in several meetings. I think that's 6 undisputed. Dr. Lesley didn't say that she thought Mr. Jones' position on a particular issue would be X or Y. The only thing in the record that I recall is that Mr . Jones participated in a meeting, and I think that's undisputed. With respect to Mr. Walker's comment about Mr. Jones' perspective would be helpful on the evaluation process, which really, as the Court is aware, was a requirement for assessments rather than evaluations, that's something that clearly could have been presented in Mr. Walker's case in chief , if he believed that someone from ODM had a perspective about the assessment process that was important, because Mr . Walker knew that's exactly what Dr. Lesley was going to testify about. THE COURT: Let me say this before you leave the lectern, if you will, because I may ask you another question: I generally take a pretty dim view of rebuttal evidence because I've found that most of it -- I've found in practice over the years that most of it is not true rebuttal . And I point that Christa R. Newburg, RMR, CRR , CCR United States Court Reporter 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 7 out in some of my letters or orders, and, as a matter of fact, in my standard scheduling order or letter with that scheduling order, one or the other, I point out that rebuttal witnesses must be identified if known. Well, that's almost by definition that if they're known, they're not rebuttal witnesses. So I've always had a hard time with that. But this case was tried by Judge Wright, the first roughly half of evidentiary hearing on the issues before the Court now. She did reserve 30 minutes' rebuttal time. Truthfully, I'm inclined to agree that this doesn't sound like rebuttal, but out of an abundance of caution, since it's only 30 minutes, I'm going to allow these witnesses to be called, with these requirements: Number one, I'm going to require Mr. Walker to identify the documents -- are you prepared to do that now, Mr. Walker, exhibits, or would you rather do this by a pleading in the next -- by, say, Monday afternoon? MR. WALKER: A letter , your Honor. THE COURT: All right. Then by 4 p.m. Monday. MR. WALKER: Your Honor, before you finish, could you -- THE COURT: Let me finish, and then I'm going to let you have the floor again, Mr. Walker. MR . WALKER: All right. Thank you. THE COURT: By 4 p.m. Monday, identify the exhibits that you plan to address with Jones or Marshall. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 8 Number two , Mr. Heller , if you want to -- you can interview these people, I assume. If you can't interview them, I'll allow you to take a telephone deposition of them next week to prepare you to meet this rebuttal testimony. If you want to do that, notify Mr . Walker and me by 11 a.m. Monday , if you want to take their depositions as opposed to interviewing them. All right. If you don't have any other comments , Mr. Heller, Mr. Walker looks like he's going to swell up and burst if he doesn't get to say something else on this. MR. HELLER : There is just one thing , your Honor. think it's at least implicit in all of the orders, but we'll certainly have an opportunity for cross-examination. I' m not sure how that counts against our time in the overall process, but -- THE COURT: I'm going to be somewhere between Judge Woods and Judge Eisele on timing. I MR . HELLER: I think we'll have plenty left from our 20 hours, even if the cross-examination counts against us. THE COURT : All right. MR. WALKER : Well, your Honor, I have no objection to them interviewing these people, but Ms. Brown has always -- and the ODM , for the Court's benefit, has always taken the position that it's available to speak with either or both of the parties about any matter that they are related to. THE COURT : It looks to me like, Mr. Walker, you've Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 9 just won. Are you piling on now? MR. WALKER: No, sir. No, sir. All I'm saying no, sir. All I'm saying is that it's not an order that's necessary. I mean, they have that as a standing -- that's been longstanding in the district, as long as the ODM has been in the process. THE COURT: I 'm going to enter the order even if it ' s pure surplusage. MR. WALKER: All right. Now, with respect to the testimony, we will provide that. THE COURT : You mean the exhibits? MR. WALKER: The exhibits. THE COURT: Right. MR. WALKER: Your Honor, by way of background THE COURT : Let me - - I want to change that. If you want to depose them, I don't think you would, Mr . Heller, but if you do, let me know by -- let Mr. Walker and me know by 9 or 9:30, by 9:30 Tuesday morning, because you may not know until you see the exhibits. Go ahead, Mr. Walker. MR. WALKER: Your Honor, I hate to say this. The Court -- you indicated you were going to follow much of Judge Wright's process that she followed. She steadfastly refused to allow us to depose the ODM , which was part of her staff, as she said it, because that would, in effect, in a way be like Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 deposing an arm of the Court. And I would ask that the Court not enter an order requiring depositions but allowing instead for them to just have the interviews. Once you start doing that, then -- THE COURT: You know, that's a pretty good point. Let me hear from Mr. Heller on that. MR. WALKER: Okay. 10 MR. HELLER: Your Honor, as I'm sure the Court is aware, we raised an issue with Judge Wright concerning the role of the monitors in this case. THE COURT: Let me say something on that, and I'll try not to interrupt you too much, but I probably won't do a very good job since I have -- I'm a type A. When I assumed the case, I met with Ms. -- or was assigned the case, I met with Ms. Marshall, and we exchanged pleasantries right after I was appointed. We did not talk about the substance of the case in any way. After that, after thinking about it and after reviewing the file some and seeing what had been discussed, I asked a member of my staff to contact Ms. Marshall and advise her that all of our communications would be in writing. And I have had no further conversations with her, do not intend to. Everything will be in writing. And I can't imagine that I wouldn't share the whatever writings I send to her or she sends to me with counsel. So there will be no just out of an abundance of caution -- and I see the ODM as a fact- Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 11 gathering institution, and I'm going to use ODM in a different way than Judge Wright used the ODM, although I'm not criticizing or passing judgment on the way she used it. But if that helps you , that's -- I hope it does. But at any rate, that will be the relationship. MR. HELLER: And I think, your Honor, that addresses Mr. Walker's argument, because our position with Judge Wright is, the monitor's office is either more like a law clerk and cannot be deposed but can't testify either, or more of a fact gatherer and not so closely related to the Court that testimony would be prohibited. And Judge Wright allowed us to take Ann Marshall's deposition. We've done it once in anticipation of her testimony. So your ruling is entirely consistent with what Judge Wright had previously ordered . And in any event, I can say right now that if interviews can be arranged, I won't be asking for a deposition. I will be perfectly satisfied with an interview. But only in the event that we couldn't reach an agreement about arranging an interview THE COURT: Let me ask you this, Mr. Heller: Assuming you wanted to discuss conversations, you or Mr. Walker, either one, that Ms. Marshall had had with Judge Wright, I don't see how that would be relevant now that I'm the trier of fact. So that's something that I want to avoid being delved into if a deposition is allowed. MR . HELLER: I agree that would not be relevant. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 12 THE COURT: All right. Well, I'm going to flip-flop again. Y'all are going to give me a nervous breakdown. MR. WALKER: Don't do it yet. THE COURT : All right. I'll give Mr . Walker one last shot. MR. WALKER: This is not a subject that I asked that should be dealt with perhaps today. I think that the Court of Appeals was very clear about what it wanted monitoring to do. There was a special concurrence from Judge Wollman in the THE COURT: I'm familiar with that concurrence. MR. WALKER: -- that anticipated that monitoring would be conducted in a certain manner, and the manner t hat it was being conducted has, in effect, been approved by the Court of Appeals. Now , if it's to be changed, then I would certainly think that the Court ought to at least invite the positions of the parties in writing and a brief on the subject so that we -- THE COURT: On what subject? MR. WALKER: On the subject of the way the monitors should react or act with the Court. Recall in this situation, your Honor , there is a situation where once when Little Rock came to court and demonstrated that it was not aware of all the employees they had, even the total number and what t hey were doing and things like that, Judge Wright then gave the monitor's office a function that was to do an investigation a nd to do things, and then she had hearings on those things . The Christa R. Newburg , RMR, CRR , CCR United States Court Reporter 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 13 role of the monitor is distinctly different from that of a party where orders are given and things -- so what we'd like to do is at least preserve that . In the field of desegregation law, monitors THE COURT : I'm not understanding what you're asking me to do. MR. WALKER: I'm asking that you do nothing to change the way that that office operates. Because if you say that you're going to -- THE COURT: I'm not changing the way, as far as I know. MR. WALKER: Even if you communicate with them and communicate with them each time in writing, I think that that's not something that should be necessarily -- THE COURT: Your objection is noted . Your exception is saved. You can file a motion for reconsideration if you want to, but I've made my mind up on that at this point, and you can file a motion and -- but don't do it with a great deal of optimism. But feel free to do it. MR. WALKER: Here's the reason I raise the issue -- THE COURT: I've decided on that issue, Mr. Walker. Put whatever objection you have in your motion for reconsideration. We need to move on to some other issues. MR. WALKER: Half a minute, please? THE COURT: Yes. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 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 14 MR. WALKER: We have the matter of -- the ruling here necessarily has to apply to the other districts as well. THE COURT: Absolutely. MR. WALKER: We have the matters of Pulaski County that are still pending. There is no motion before the Court. The role of the monitor there would seem to be being limited by the Court's ruling now because THE COURT: Put that in your motion. MR. WALKER: All right, your Honor. All right. THE COURT: Thank you. All right. I want to remind the parties, I've said it several times in writing, and Judge Wright said it, but I want to remind you at the outset of that, we have three discrete issues left, and one of them is advanced placement courses, another is extracurricular activities, the third is guidance and counseling. And then, of course, we have good faith, but only as good faith applies to those one, two, three things that I just mentioned. And we have academic achievement on the table, but only as it relates to those three -- one, two, three issues. As Mr. Walker just noted, this applies to both sides with equal force. Now, as I have read the transcript, the issues tried to conclusion, and I emphasize the phrase \"to conclusion,\" by Judge Wright were lack of good faith under Section 2.1; two, improving African-American achievement, lack of good faith by the Little Rock School District; and, three, student Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 15 discipline. Now, those issues are closed. They've been tried to conclusion, save and except the 30 minutes for rebuttal which we will start the hearing a week from Monday with. All right. Now, I want to turn to Mr. Fendley's letter which was in response to the letter I got out about one o'clock yesterday. Let me find Mr. Fendley's letter. 11. It's dated July Now, on the first page, there's a reference to Joshua's witness list and a reference to Ms. Sharon Brooks. It appears to me that Mr. Walker's testimony would go to student discipline there. If that's true, I think it would be appropriate to object at the trial , but I don't know that I need to deal with it now. If anybody thinks I do, I'll hear from you. But if it does go to student discipline, I'm likely to exclude it at the trial. MR. WALKER: Your Honor, may I be heard? THE COURT: You may. MR. WALKER: Some of these matters overlap. A matter that may be related to student discipline may also relate to counseling. And I would say in this situation , the discipline part of this THE COURT: Related to guidance and counseling? MR. WALKER: Yes, sir. And the first part of it, where students collectively are punished for ringing an alarm by putting them in a room with an aide for two months where Christa R. Newburg, RMR, CRR, CCR United States Court Reporter -- --- - - - - 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 16 there's no record of the discipline appears to be disciplinary. But at the same time, it certainly goes to the educational experience and the need for there to have been at least some counseling with respect to what those -- the educational needs of those children were and how they were being addressed. So we say that it has two purposes. The first, on discipline, though, has to relate -- you remember, you've seen the records. They have disciplinary records showing students who are suspended for this, this, and this. Normal discipline relations, those kinds of things. But putting kids in a room where they -- where there's no record of it clearly is discipline, but it is also something else. THE COURT: I'm going to think about that issue. I'm inclined to think that relates directly to discipline, but I'll think about it and we'll take it up at the trial. I'll let Mr. Heller address it right now, briefly, if he wishes to. MR. HELLER: Thank you, your Honor. I would just like to point out that at the last hearing, Mr. Walker argued that this was a discipline issue, and he presented evidence about it and argued about it and argued precisely what he just told the Court, that this is -- this situation, he alleges, was a way to avoid the recorded discipline statistics but was nonetheless discipline. I think it's going to be easy for him to say anytime something happened to any student at any time in the district, whether it relates to academic achievement or Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 17 some issue that's already been litigated, oh, by the way, they missed some counseling or could have been counseled otherwise. But I don't think that draws it into the scope of any legitimate objection he might have about guidance and counseling. THE COURT: Mr. Walker, you're on the downside of this issue. If you want to submit a trial brief to me to try to get me in a right frame of mind, in your view, by trial day, do a - - and this applies to either side. If you want to do another trial brief, get it to me by noon Wednesday of next week. By noon Wednesday. And I will guarantee you I will if it's not too long, I will have read your brief and your citations of authorities, if you will avoid string cites. string cites, I read only the first one and sometimes the second one. On Now we come to exhibits not directly related. And I think some of them have been withdrawn and so forth, but -- all right. Let's go to No. 746. MR. HELLER: Your Honor, there was one other witness mentioned in Mr. Fendley's letter, and that's Ethel Dunbar. THE COURT: Yes . Yes. I don't believe that -- it's my opinion, and, again , you can put this in the trial brief, Mr. Walker, if you think I am wrong-headed on this issue, that what -- it looks like what Ethel Dunbar would testify to goes to the gifted and talented issue, as far as I'm concerned. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 That's not on the table. If you want to persuade me otherwise, you can put it in the trial brief. Let's go to the exhibits now. 746. I'm having a hard time reading my -- what is 746, Mr. Walker? Why don't you just hand me a copy of it so I can look at it? MR. WALKER: Your Honor -- THE COURT: Does the school district have a copy you can hand me? MR. HELLER: Yes, your Honor. THE COURT: If you've got any of your inked annotations on there, I don't want to see them. MR. HELLER: I've got a circle and an underline. THE COURT: I promise not to accept your emphasis. MR. WALKER: Your Honor, we have given you our copy, a copy of it. THE COURT: I just don't have it out here with me, and I just -- I need to look at something. MR. WALKER: This one has been MR. FENDLEY: Here you go. MR. HELLER: We'll give you Mr. Fendley's copy, which is merely highlighted. sure. MR. WALKER: Is this the new number given by your -THE COURT: I think this is the old number. I'm not MR. HELLER: That's correct, your Honor. Our Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 objections use the old numbers. THE COURT: 746. All right. I'm working my way over. Mr. Walker, if you'll approach the lectern. Are you telling me you don't have a copy either, Mr. Walker? MR. WALKER: No, no. We have a copy, but we have taken the old exhibits -- after your courtroom deputy told us the new numbers, we changed them. 19 THE COURT: Okay. I'll give you time to get your sea legs. MR. WALKER: What is now 747 was 746. I don't understand the objection. THE COURT: All right. I'll have him state his objection then. Mr. Heller -- why don't you stand aside, Mr. Walker, and let him state his objection. MR. WALKER: All right. MR. HELLER: Your Honor, our objection is that Exhibit 746, using the old number, relates to ALT testing and not to any of the issues before the Court for next week. MR. WALKER: Your Honor, if you look at that exhibit, we're looking at the way the district has referred to the numbers that are related -- I don't see anything in 746 in the middle of the page which happens to be -- and I stand to be corrected, the e-mail from Babbs to Kathy Lease. THE COURT: You're going to have to I'm computer illiterate, Mr. Walker. You're going to have to quote the Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 20 language. I can't tell on e-mails from who to what unless it's written on there. MR. WALKER: Mr. Babbs, your Honor, is the person responsible for monitoring desegregation compliance. THE COURT: And he sent something to Kathy Lease. MR. WALKER: It apparently comes from Babbs to Lease. THE COURT: Right. MR. WALKER: And the third paragraph says, \"It would be appropriate to list current data that is available. Be reminded that when writing materials for our report submission, we will include district-wide numbers. We may not be there yet , but this will help serve as an indicator of established baseline information from which we will jump off.\" Now, this relates to, your Honor, the data that relates to pre-AP and AP courses, along with some other data, but it will be related to testimony regarding advanced placement. It also will be related to extracurricular activities. So you' 11 understand the concept, when you've got two black schools, McClellan and Fair, for all practical purposes, when you lump the extracurricular participation from those schools with the other schools, it gives a picture of real inclusivity. If you take it out, it may not. When you lump the -- when you do a lumping process, we're saying that it gives a false picture. There was an intent here, and this goes -- this is an intent, it goes to good faith, an intent to make a presentation Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 21 of a reality that did not exist. THE COURT: All right . Mr. Heller? MR. HELLER: Your Honor, Mr. Walker's explanation shows why this exhibit should be excluded. When we objected to it, their response was that it was related to extracurricular activities. Now the first thing that he said was that it's related to advanced placement and pre-advanced placement. It's not related to any of those things. It's related to testing and the compilation of documents. It doesn't have anything specifically to do with any of the issues before the Court. Mr. Walker has now given the Court two different explanations of how it relates, none of which can be shown from the face of the exhibit. THE COURT: All right. I don't believe I need briefs on this one . I will do a letter order ruling on that forthwith. Mark No. 746 down and remind me so I don't -- with the other issues involved so I get right on it. I think it's already been noted, but I want to re-note it. It's now 747 under the new numbering system. All right. 754. Mr. Walker, will you comment on 754? MR. WALKER: Yes, sir. THE COURT: Which now is what? MR. WALKER: It should be 755, if I'm not mistaken. MR. PRESSMAN: Sarne number. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 THE COURT : Ms. Johnson? THE COURTROOM DEPUTY: 754 is an e-mail dated April 18, '01. Is that the one you're 22 MR. WALKER: Yes . That's at the bottom of the page, your Honor, on that document. THE COURTROOM DEPUTY: It is still 754. That number did not change. THE COURT: All right . 754 is the same. All right. What's your explanation as to why this is admissible? MR. WALKER: This relates to AP and other subjects, and the last paragraph of it says, and this is from Kathy Lease to Bonnie Lesley: \"High school preliminary results have been returned to Parkview and Fair.\" THE COURT: Wait just a minute. I'm not with you. Where are you reading from? MR. WALKER: Bottom paragraph. THE COURT: Bottom paragraph. All right. Now I'm with you. MR. WALKER: \"McClellan's results are here and are being scored. Central and Hall have not turned in their answer sheets yet. All makeups were to have been completed by this past Monday. Retests for high schools are due back on Friday. The first page of the parent report can be printed, but we can't print the longitudinal report for parents unless all high schools are in.\" Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 And this relates to AP courses. This, your Honor, is relevant in part because the date is noted, April 18. The report that was submitted that is before the Court is dated March 15 of the next -- of the same year. So this was less than 30 days, and they don't have the data in that related to AP courses on the longitudinal basis. THE COURT: On what basis? MR. WALKER: Longitudinal. THE COURT: You know, I've seen longitudinal basis throughout this thing. What does that mean? MR. WALKER: Over time. Looking at things in a broader perspective rather than in a single snapshot year. THE COURT: I'm pleased to be informed. Mr. Heller? 23 MR. HELLER: Your Honor, in the same way, anything that has to do with discipline can be said to relate to counseling; anything that has to do with any testing in the district can be said to relate to advanced placement because some of the students tested, obviously, will be advanced placement students. But the exhibit doesn't say anything about how the district implemented its obligations under the revised plan concerning advanced placement . to do with that at all. It doesn't have anything THE COURT: later than Monday. I'll rule by letter perhaps today, no Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 All right. Let's go to 771. MR. WALKER: Your Honor THE COURT: That is the letter to Mr . James Washington from Ms. Springer, is it not? MR. WALKER: Yes. Your Honor, this is from Ms. Springer to Mr. James yes. This is now Exhibit 769. THE COURT: Let me check that. 771? Not that I doubt your veracity, but you could make a mistake on numbers, so I want to check it with Ms. Johnson. 2/28? THE COURTROOM DEPUTY: Yes. 769 is a letter dated MR. WALKER: Yes. THE COURTROOM DEPUTY: Yes. 769. THE COURT: Thank you . MR. WALKER: Your Honor, this deals with extracurricular activities, and it's pretty clear, and the issue here relates to the district -- whether Little Rock has any responsibility THE COURT: In other words, you're offering this in rebuttal only? 24 MR. WALKER: No, this goes to extracurricular activities and good faith, because here we have a child who is in the Little Rock School District but who under M to M goes to Oak Grove. The child was not allowed to participate, we contend, in the activities at that school for racial reasons or Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 25 for retaliatory reasons. And I think the letter sort of speaks for itself . THE COURT: Well, why would -- on what ground would it be admissible? Is Ms . Springer going to be a witness? MR. WALKER: Well, your Honor, it shows, first of all , Mr. Washington, Mr. Washington is an agent of the district. THE COURT : I think that's a fair assessment , but he didn ' t write the letter. MR . WALKER: Well, there will be a person who will testify regarding that, who is Mr. Junious Babbs. Mr. Babbs was Mr. Washington's supervisor. The letter went to Mr . Babbs as well, so Mr. Babbs will be in a position to address the issue. THE COURT: What will he say? MR. WALKER : He will say what the district did in response to this , which was basically to do nothing. Just a moment . Let me make sure. Yes. He will basically say that the district did nothing . And remember, your Honor , the M to Ms from Little Rock going out are black. The ones coming in from the county are mostly white . THE COURT: All right. Mr. Heller? MR. HELLER : We have two points about 769, your Honor . The first is that it clearly involves, quote, Christa R. Newburg, RMR, CRR , CCR United States Court Reporter 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 retaliatory treatment by Pulaski County School District officials, not Little Rock officials, and, secondly, that it's among the exhibits Joshua listed as being offered, although hearsay, as notice to the Little Rock School District. I think it might fall within the Court's ruling when we deal with the notice argument. But if you look at Joshua's response, I think this exhibit is among those that they say is being offered solely to show notice to somebody . Of course, we're going to argue when the time comes that that's not relevant. THE COURT: All right . Mr. Walker, what about the fact that this is not the LRSD? MR. WALKER: That it's not what? THE COURT: Concerning the -- he just said -- MR . WALKER: Well, it is concerning the LRSD. This is a student from the Little Rock School District. They don't lose responsibility for their students merely because they go to the county. THE COURT: Wait a minute. Wait a minute . The student was in the Pulaski County -- Oak Grove High School is in the Pulaski County Special School District. MR . WALKER: Your Honor, there is or was an agreement between the county and the city district as to how the desegregation plan would be operated . And the M to M provisions also have special rules . We would not have written this letter to Mr. Washington without a purpose. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter It may not be 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 independent, but when we talked to Mr . Babbs about the way Little Rock students are treated in terms of extracurricular activities in general, we think that it is appropriate for us to be able to make reference to this in refreshi ng his recollection about the manner in which they have done . I acknowledge to you that it is not direct proof . I mean, a letter from Ms. Springer, who is not a witness, who is not THE COURT: I'm dubious, Mr. Walker, but I'll study it . MR. WALKER: All right. MR. HELLER: May I say one more thing? THE COURT: Surely . MR . HELLER : I ' d like to address Mr. Walker's 27 argument about the majority to minority transfer provisions. This student was a Little Rock student in the Pulaski County School District on an M to M transfer. The M to M stipulation clearly states that when a student transfers, he becomes a student of the receiving district for all purposes. So I don't want the Court to be left with an impression that there ' s some lingering responsibility or that the M to M stipulation is not clear about that . THE COURT : Thank you . All right . Let's go to 77 -what was 773 . Ms. Johnson, tell us what 773 is now . THE COURTROOM DEPUTY: 773 is a letter dated 10/10/2000 to Les Carnine from Joy Springer. Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 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 THE COURT : No, 773 under the old numbering system was an August 28, 2000, letter from Ms. Springer to Mr. Ray Gillespie. THE COURTROOM DEPUTY: All right. Then that is 771 now. THE COURT: It's now 771. All right. Mr. Walker, tell me about this one . 28 MR. WALKER: This one regards a child who was choked by a teacher, by a coach. This relates to extracurricular activity. It also, in our opinion, relates to -- when we present Mr. Gillespie, it will also relate to the district's good faith in the manner in which they address the issue. THE COURT: Mr. Heller? MR. HELLER: Your Honor, one of the things that's always been excluded from this case is any individual issue concerning a personnel matter or a student matter. THE with that in MR. MR. Overton? THE MR. THE MR. COURT: I believe Judge Overton kind his decision several years ago. HELLER: Yes, your Honor. WALKER: Just a moment, your Honor. COURT: Yes . WALKER: In this case? COURT: No, I believe - - WALKER: Judge Overton hasn't been Christa R. Newburg, RMR, CRR , CCR United States Court Reporter in of dealt Judge this case. 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 29 THE COURT: Beg your pardon? No, Judge Woods and Judge Wright. Judge Overton dealt with the issue of isolated instances of misconduct. Go ahead. MR. HELLER: Your Honor, here it's just clearly not related to the district's implementation of the extracurricular requirements. If it were a teacher, it would obviously be totally outside the scope of this hearing, and just the fact that someone who happens to be a coach was involved in this incident doesn't bring it within the scope, since it's simply an isolated incident concerning an individual complaint. THE COURT: I'm inclined to agree. I agree it's bad, but I'll decide later and put it in my letter. MR. WALKER: Just a minute. Just a minute. We've only highlighted a few things, and we intend to show through either Mrs . Lacey or Mr. Babbs that there were numbers of these cases that suggested it's simply not an isolated incidence. This is extracurricular activity, and we're seeking to show how black kids are treated, and this is simply there to remind Mrs. Lacey or others of what has taken place. Now, in terms of -- as I understand desegregation law, you're not likely to have the same situation repeated with respect to children, but when you put together a number or at least a sufficient number of similar situations, then the -- at least the response of the district to those similar situations Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 30 is instructive as to whether the district is in compliance and in good faith. THE COURT: It may boil down to how many you have. If you had 10,000 of them -- and I realize that's extreme, but it may boil down to how many you have. And I'll rule by letter. MR. WALKER: All right. Thank you. THE COURT: Thank you. And, incidentally, if I exclude any of these, I want the record to reflect here and now that you have a continuing objection to excluding them. They'll be made a part of the record, and your objection will be noted and your exception saved. All right. Let's go to 775 under the old system. What is it now? THE COURTROOM DEPUTY: It is now 773. A letter dated 10/10/2000 to Les Carnine from Joy Springer? THE COURT: Yes. Mr. Walker, don't we have the same thing here? MR. WALKER: Well, it's different, your Honor. Here the history of the school district has been that if a child was in the ninth grade, even though in junior high school, he or she could participate in the varsity athletic programs at the senior high school . So if a child happened to be enrolled at Forest Heights in the ninth grade, that child was eligible to participate in, say, the football program at Hall or wherever Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 31 he would be attending. When the school district converted to a middle school program, the school district decided not to let ninth graders continue to participate in sports programs in the same way it had in the past, and this had a discriminatory impact because most of the children who participated in football and basketball were black. Now, those children could -- those children could still participate in other activities, but some of the other academic-type activities were differently constituted. So this letter, if you look at the middle of it, you'll see Ms. Springer's comment to Dr. Carnine. Mr. Gillespie reported to Mr. Winston and me that there existed documentation which communicated to all parents the district's position regarding ninth grade participation on varsity teams for the 2000-2001 school year. Now, this is again not direct evidence -- and I think that much of this comes from experience, not direct evidence, but we have a witness, your Honor, that we have identified that will be discussing the issue. THE COURT: Who is that? MR. WALKER: That would be Mr. Gillespie. It could also be Mrs. Lacey, Dr . Lacey, or Mr. Babbs, because each of them had responsibility for extracurricular activity. THE COURT: All right. Mr. Heller? Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 32 MR. HELLER: Your Honor, the Little Rock School District is a majority black school district, and everything we do is going to affect more African-American kids than other kids. This situation, according to Mr. Walker's argument, is something that affected all students . It wasn't something that targeted black students or targeted this particular student. But, again , it looks like an individual complaint, but the complaint is about something that had general application and doesn't have anything to do with whether or not the Little Rock School District is ensuring there aren't any barriers to participation by qualified African-American students in extracurricular activities. THE COURT: You know, I was just thinking, I wish the rules of ninth graders participating in senior high athletics had applied in 1954 when I was in the ninth grade. We finished the junior high year and they moved three or four of us up to the senior high team, and we had some young teenagers competing against grown men, to our physical detriment. prohibited it back in those days. I wish they had MR. HELLER: That brings up another point. It's really the Arkansas Activities Association that determines who is eligible to participate in this, rather than the school district. THE COURT: What I would prefer for my bones I don't think would have a bearing on the constitutional issues here. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 I will rule on this one , too. MR. additional on WALKER: that. Your Honor, let me say something The plan before you -- 33 THE COURT: You're still referring to what ' s old 775? MR. WALKER : Yes, sir. THE COURT : All right. MR. WALKER: The plan before you commits the school district to encouraging participation by African-American students . THE COURT: It does. MR. WALKER: All right . THE COURT : All right. 780 . Old 780 . Ms . Johnson , what is that under our new system? THE COURTROOM DEPUTY: 775. An e-mail dated 5/25/01 from Bonnie Lesley to Debbie Barry, page 258? THE COURT: A letter from Ms . Springer to Mr. Washington? No. Hang on just a minute. I've got the wrong -- what did you say it is, Ms. Johnson? THE COURTROOM DEPUTY : The old 780? THE COURT : Yes . THE COURTROOM DEPUTY: Is now 775 , an e-mail dated 05/25/01 from Bonnie Lesley to Debbie Barry. THE COURT: Hum. From who? THE COURTROOM DEPUTY: From Bonnie Lesley. THE COURT: To whom? Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 34 THE COURTROOM DEPUTY: Debbie Barry. THE COURT: Okay. All right. Mr. Walker? MR. WALKER: All right. Just a moment. Now, this is May 25, 2001, after the report of March 15. This is submitted -- it relates to something beyond middle school evaluation. All right. Well, let me explain. We may have misspoken about this one. I think that Mr. Jodie Carter will be talking about the Plato labs. It would be our position that the Plato labs were working to try to at least help students at McClellan, where they needed the most. So the first part of this exhibit, your Honor, and we may have misspoken there, relates to the Plato labs. Now, it's not presented here as an exhibit that we plan to introduce . It is one that we will make use of when Dr. Lesley testifies, and also when Mr. Jodie Carter testifies. THE COURT: Tell me how, for example, when Lesley testifies, how you will make use of it. MR. WALKER: Well, I may not even use it. If she talks about the Plato labs and gives the Court some idea of what the Plato labs were intended to accomplish and whether they were stopped, and if the testimony does not reflect a need to use this, then we won't. This is basically to refresh one's recollection more than anything else, but if I understood the Court's directive, if we plan to make almost any kind of use of any of these things, we should at least let the other side know Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 about it in advance . These are not -- hopefully not putting things in to be admitted because not everything that we put here will necessarily be admitted, your Honor. We may make some reference to them. THE COURT: Well, I'm not going to require you to offer evidence, Mr. Walker. I'm going to absent unusual 35 circumstances, if you offer evidence, I'll rule on it if there's an objection . But I'm not requiring you, just because you list something as an exhibit or a witness, I'm not requiring you to call a witness or to put an exhibit in. I'll see if Mr. Heller wants to respond t o that. Mr . Heller, do you have any response to that? So MR. HELLER: Your Honor, Mr. Walker listed this as something for -- related to guidance and counseling. He said he may have misspoken. Maybe that's what he was referring to. But his explanation didn't say anything about guidance and counseling. In the Plato labs, Dr. Lesley's testimony will be about advanced placement courses and THE COURT: You're talking faster than I'm hearing. MR. HELLER: I'm sorry. Dr. Lesley's testimony will be about advanced placement, and the Plato labs don't have anything to do with that. That's a self-paced program that was being used to help students do some makeup work. Mr. Walker said Jodie Carter will testify about what happened at McClellan. This exhibit has to do with Dr. Lesley's knowledge Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 36 of the existence of a Plato lab at Central. So it doesn't even tie in with that. THE COURT: Well, you know, I've only got so many rulings in me, so I think I'll wait and see if this comes up before I rule. Mr. Walker has indicated that it may not be tendered. I don't want to waste a ruling. MR. WALKER: Your Honor, part of what we have here is Dr. Lesley's testimony that they're trying to get all these kids into pre-AP and AP courses, and the Plato lab is one of those things where -- which they put into place to get these kids who are way behind into a status where they may be able to succeed in AP courses, once placed there. That's why we wanted to address it. But I think, your Honor, if you could just defer on this, it would probably serve, as many of them, your Honor. THE COURT: All right. Let's go, I believe, 786, the old 786. What is that now, Ms. Johnson? THE COURTROOM DEPUTY: 778, a memo dated 2/24/99 to Gayle Bradford from James Washington. THE COURT: All right. Mr. Walker, I'll hear from you on that. MR. HELLER: Your Honor, if I may be heard first, we'd like to withdraw our objection to that exhibit. what? THE COURT: All right. Let's go to 802, which is now Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 37 THE COURTROOM DEPUTY: 794-A, deposition of school board member Sue Strickland. THE COURT: All right. Here is what I'm -- 794-A, I'm going to require designations, Mr. Walker, on what portions of those depositions you intend to use, and I'm going to require counterdesignations by the -- in response to those by LRSD. How long do you need to get the designations in? MR. WALKER: Just a moment, your Honor. Your Honor, we have listed Ms. Strickland as a witness as well. We've submitted her deposition in part so that if it becomes necessary, it can be used to refresh her recollection on a matter that she addressed regarding the three subjects that she is related to. It may not be necessary to put it in. Now, I expect, among other things, for her to say that she did not find the superintendent of schools, Dr. Carnine, to be a credible person. And also I intend to show either a knowledge or lack of knowledge regarding the plan as it relates to those sections, especially AP courses and things like that. THE COURT: In other words, you're not going to use the deposition as evidence by getting up and saying, I'm going to read now from the deposition of someone? MR. WALKER: No, sir . THE COURT: You're not? MR. WALKER: That's not my intent. The depositions that we have identified are depositions of persons that we have Christa R. Newburg , RMR, CRR, CCR United States Court Reporter 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 also identified as witnesses. THE COURT: All right. MR. WALKER: We took more depositions and did not identify all those persons. 38 THE COURT: Let me say this: I would likely exclude the reading from a deposition if there haven't been designations done, if you do it without -- I realize for impeachment or refreshing memory, I don't see anything wrong with that, but just to get up cold and read them, as you normally can do if a party or principal of a party is -- you have a deposition of one of those people under the Federal Rules of Civil Procedure, as well as the Rules of Evidence, but I think I understand you to say that these depositions that are referenced in 802, which is now 794-A, you're not going to offer them outright, but you're going to use them for impeachment or refreshing recollection, if necessary. a fair statement? Is that MR. WALKER: If necessary, or will designate at some time in sufficient time for the district to be on notice the portions THE COURT : Designate by 5 p.m. on Monday. MR. WALKER: Let us have until Wednesday, your Honor. You ' re giving us different dates. If you give us until Wednesday on everything, I think that would -- THE COURT: They've got to counterdesignate, I think Christa R. Newburg, RMR , CRR, CCR United States Court Reporter 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 39 is the problem. MR. WALKER: Well, in terms of that, it's not -- it's only 15 or -- this deposition in substance is only 30 pages. THE COURT: I'll compromise with you. 5 p.m. on Tuesday. MR. WALKER: Maybe we can get everything in by Tuesday on our side, and then the district would have a day or two. THE COURT: I'll have them do it by Thursday. Anything you plan to read, have your designations in by 5 p.m. Tuesday. MR. WALKER: That's fine, your Honor. THE COURT: And counterdesignations by LRSD should be in by 5 p.m. Thursday of next week. All right. Let's take about a ten- or 15-minute recess. I'm going to borrow these exhibits, if you don't mind, during the recess. I'm going to take another look at them. We're in recess. Be at ease . (Recess at 9:26 a.m. , until 9:50 a.m.) THE COURT: I appreciate y'all's patience, if you had any. You're dealing with a slow learner, so it may take a little longer for me to studify. Put a \"sic\" after the \"studify\" so the Eighth Circuit won't think I didn't know any better. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 40 All right. Let's -- by the way, there's been several references to ALP testing. Mr. Walker, can you explain that to me? Come to the lectern here. MR. WALKER: Your Honor, it's ALT. THE COURT : ALT . Okay. MR. WALKER: Alternative learning tests. THE COURT: Okay. Thank you. MR. WALKER: Wait a minute. Achievement learning -- level test. Okay. I'm sorry. Achievement level test. I'm sorry. THE COURT: Thank you. I can't resist telling a story. When my law students would finish class over at the law school here, I'd give them a certificate certifying they were a WTP, a Wilson-trained person. And I had one of my former students on the stand one time before Judge Eisele, and I asked, \"Is it true you are a certified WTP?\" And Judge Eisele immediately said, \"What's that? 11 Well, I had one before another judge whose name I won't mention, and I said, \"Are you a certified WTP?\" And that person said, \"I certainly am,\" and that judge never asked a question, just went on. I was kind of that way about ALT. I was kind of embarrassed because it had been referred to, but I now know and I'm glad. Let's talk about No. 791. Mr. Walker? MR. WALKER: Yes, sir. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 41 THE COURT: What is that number now , Ms . Johnson? THE COURTROOM DEPUTY : The old 791 is now 783, a memo dated 5/3/99 regarding visit -- THE COURT: No, I'm looking at an agenda dated May 4, 1998. Is that what -- MR. HELLER: Your Honor, that ' s the second page of the exhibit, as I've got it. THE COURT: Oh , that's right. Okay. So 791 is now what? 783? THE COURTROOM DEPUTY: Yes, yes. THE COURT: Mr. Walker, I assume you read my letter of yesterday. MR. WALKER: Yes. THE COURT : In which I , in effect, said I was impressed with what you said, but uninformed . So you need to tell me what you meant there . Do you want to authenticate pages 2 and 3? MR. WALKER: Let's see. The first page is the agenda of a meeting that took place on May 4 , 1998, and the second page are the notes of Ms . Springer regarding the meeting with Mrs. Elston before that meeting . THE COURT : If you will, keep your voice up a little. I'm a little hard of hearing . MR . WALKER: I'm sorry, your Honor. THE COURT : I don't -- my second page is entitled -- Christa R. Newburg , RMR , CRR , CCR United States Court Reporter 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 also entitled \"agenda ,\" got \"secondary counselors' workshop,\" and I don't see any notes here by anybody. MR. WALKER: Just a moment. Let me visit with Mr. Heller a moment. THE COURT: Surely. 42 MR. WALKER: All right. Your Honor, I understand we may have them out of order . We have the same pages. The first page will be -- THE COURT: You'll need to get to the lectern here so my secret agents can hear you. MR. WALKER: The first page would be the May 3, 1999, visit to Little Rock School District's Administration and Pupil Services Building by Ms. Springer. THE COURT: All right. MR. WALKER: And the second would be the agenda. THE COURT: All right. MR. WALKER: And the third would be -- it would have time lines and pre-college counseling. THE COURT: All right. MR. WALKER: And conclusions and recommendations. And these exhibits will go to the counseling subject that Mrs. Elston will be testifying about. THE COURT: Mr. Heller, let me hear from you. MR. HELLER: Your Honor, our objection goes to the first page, which is dated May 3, 1999, Ms. Springer's notes. Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 43 They're hearsay. And she is now listed as a witness to testify in this proceeding. THE COURT: What's your replication to that, Mr. Walker? MR. WALKER: This is not an evidentiary exhibit. only becomes one in the event that Mrs. Elston testifies a It particular way. But I think that what we're using, what we're showing here, your Honor, is that there are certain things that we were informed of with respect to the counseling program. The counseling -- and that preceded the meeting regarding counseling by one day. And then there is another exhibit that relates to it. So when we examine Mrs. Elston or when anyone examines Mrs. Elston, we'll be able to demonstrate that at least some of these things that she said were in place to enhance counseling services were at least discussed at some point or another. She should have good information or at least she ought to be able to give competent information regarding these subjects because she will acknowledge, we believe, that she did have this meeting with Ms. Springer. THE COURT: I'll rule on that if it becomes relevant during the trial. MR. WALKER: Thank you. THE COURT: Let's look -- well, as a matter of fact, let me say this about the documents: I had indicated I was Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 44 going to rule by a letter. I'm going to remind y'all of that judge that we all hear about that had a seven-year-old son that he hadn't named yet because he couldn't make up his mind. I will try not to be that way, but I'm going to flip-flop. I'm not going to rule pretrial on the exhibits we've covered. I'm going to wait until we get to the trial. There may be some nuances in the testimony that might cause me to go a different direction, so I'm going to all those exhibits we covered earlier, I'm going to wait until the trial to rule on them when they're offered, and I'll allow you at the trial to make rifle-shot arguments for or against the admission, depending on which side you're on. Let's move now I need to find Mr. Walker's letter here. Refer, if you will, to paragraph seven of Mr. Walker's letter. By the way, if you send letters to me, please also send the original to the clerk, all of you. The clerk has a rule that they don't like filing copies. I don't understand that rule, but who am I to argue with the clerk? All right. Paragraph seven, Mr. Walker, you don't need to address that because I'm on your side. You don't want to turn me around. Mr. Heller, as I recall, Judge Wright said that anything post March 15 wouldn't be admissible. As a matter of fact, I think she gave you an A and B option, and you didn't like either one of them, objected to both of them, but said if you Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 45 had to choose between the devil and the deep blue sea, that you'd take B. So I'm not going to exclude these witnesses, but I caution you that I'm going to stand by Judge Wright's ruling that unless there's some powerful reason not to do so, that March 15 is the cutoff. Because that's when you said, we're unitary. MR. HELLER: Your Honor, that's an issue I'd like to address briefly. Judge Wright's ruling, and I've got the October 2 transcript where she made the ruling, which was followed by an order the following day, was based on Judge Wright's decision that the issue in the case was only whether or not our March 15 compliance report was accurate. And for that reason, she said we' ve got to show her -- since we said we complied as of March 15, that we've got to show her whether or not that ' s true and that that's the issue. But I think there's a somewhat broader issue in the case, and that's whether or not we substantially complied with the plan, the term of which ran through the end of that school year, beyond March 15. And there could also certainly be evidence that substantial compliance was had even if some aspects of it came even after the school year, let alone after March 15. So we had understood and hoped, your Honor, that the issues in the proceeding would be actually the Little Rock School District's substantial compliance with its desegregation plan and not limited to whether or not the March 15 compliance Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 46 report was accurate . I would like to tell the Court one thing about that compliance report. We could have and perhaps THE COURT: I don't see the issue as being whether that report is accurate in the sense of whether you've got a typo in it or not; it's whether or not you were in compliance as of that date. MR. HELLER: Well, but, your Honor, the plan requires substantial compliance , and the term of the plan ran through at least June. THE COURT : Three years. MR. HELLER: Right. So, you know, we could end up in a situation -- if we don't consider the entire term of the plan, we could end up in a situation where we could determine compliance as of March 15 and then come back and have to have another proceeding about whether we came into compliance by June or July. THE COURT: That's a distinct possibility, and I'll run that risk. I'm going to put what you've said just now under the heading of going down hard, but I'm going to stick with the March 15 deadline. Your objection to my ruling is noted and your exception is saved. Anything else we need to take up? I appreciate y'all's time. Apparently there is. MR. HELLER: I'm sorry, your Honor. With respect to your ruling that you would decide the exhibits at trial, did Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 47 that include the exhibits that are listed as rebuttal exhibits? Because we're still -- we've still got an argument that none of those relate to the rebuttal testimony. THE COURT: It does include those. I realize you object to them and say they're not rebuttal. It does not apply to the deposition designation, though. That's 80 -- whatever it is. I want designations and counterdesignations on the depositions. All right. Mr. Jones? You're familiar with the old adage that the quacking duck gets shot, aren't you? MR. SAM JONES: Absolutely, your Honor, so I'll try to bob and weave. I just wondered if the Court had a sense or a preference, having listened to the Court narrow down the issues, as to whether or not the Court desires my presence during Little Rock's unitary hearings, Mr. Steve Jones or anyone else, perhaps even including Mr. Roachell, who certainly can speak for himself. THE COURT: Well, you know, I'm highly reluctant to give an advisory opinion on that because what if some witness gets up and just volunteers something that's highly damaging to your client and you're not here? I mean, I'm a little bit at a loss to -- I would like to excuse you and tell you to go about your way because that will narrow the number of lawyers as well as the issues. But I'm a little chary of doing that. Let me hear from the other lawyers whether they think they Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 need to be here, and then I'll hear from Mr. Heller and ; Mr. Walker, whether they want you here or not, and then I'll answer your question. How is that for a deal? MR. SAM JONES: That's a deal, your Honor. THE COURT: All right. MR. STEVE JONES: Well, your Honor, I don't know about need, but I do plan on being here. My experience has been that your concern is sometimes warranted, that issues arise that affect the other school districts when the basic issue before the Court at that point in time has not -- THE COURT: You're going to be here. That's fine. MR. STEVE JONES: So I plan on being here. 48 MR. ROACHELL: Your Honor, quack. I will also be here. The testimony -- I just need to keep up with the case, and the testimony occasionally presents an opportunity to cross-examine within the scope of my intervention. Thank you. THE COURT: Thank you. All right. Mr. Walker or Mr. Heller, do y'all have a position? If you don't, you're not required to speak. I take it by your failing to rise that you do not. All right. What says -- MR. SAM JONES: If the Court could give me the latitude, your Honor, to kind of feel my way along, be here at the beginning, and if the Court wouldn't be offended if I sense that my time could be best served elsewhere for particular Christa R. Newburg, RMR, CRR, CCR United States Court Reporter 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 parts of the proceeding, I guess if I could go in and out and not offend the Court, that would be my preference. THE COURT: I won't make a commitment to you that I won't get offended , but I won't get offended by that. I will make that commitment. MR. SAM JONES: All right. 49 THE COURT: All right. I appreciate y'all being here on short notice. This is an important case. Y'all obviously realize that. We'll get the trial started. You've got deadlines for next week, and we'll get the trial started a week from Monday and conclude it that week, providence being willing, and then we'll have the findings of facts and conclusions of law. Sometime in August has been set for that. And I plan on ruling in the case well before the first killing frost. We're in recess. (Proceedings adjourned at 10:08 a.m.) C E R T I F I C A T E foregoing is a correct transcript from he above-entitled matter. Date: July 16, 2002 rista Newburg, United States Court Christa R. Newburg, RMR, CRR, CCR United States Court Reporter    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["judicial records"],"dcterms_extent":["320 page scan, typed"],"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\u003cdcterms_description type=\"array\"\u003e   \n\n\u003cdcterms_description\u003eThis transcript was create using Optical Character Recognition (OCR) and may contain some errors.    IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL PLAINTIFF'S MOTION IN LIMINE RECEIVED JUL - 8 2002 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS Plaintiff Little Rock School District (\"LRSD\") for its Motion in Limine states: 1. May 15 Order: Joshua's Witness List. On May 15, 2002, the Court ordered the parties on or before June 21, 2002 to \"identify the name of each of their witnesses, the date and - time each witness will be called, and the anticipated time it will take for direct examination of each witness. A detailed statement must be included of each witnesses anticipated testimony on each issue the witness will address.\" Order filed May 15, 2002, p. 2 ( emphasis in original). Joshua's witness list is attached hereto as Exhibit 1. As can be seen, Joshua failed to comply with the Court's order in every respect. Upon information and belief, Joshua has not even contacted many of the individuals identified to discuss their appearing at the hearing and testifying, and Joshua has no intention of calling all of the witnesses identified. The LRSD moves in limine that Joshua be ordered on or before 5:00 p.m. on July 10, 2002 to identify the date and time on which each witness will be called, to identify the issue(s) on which each witness is expected to testify and to provide a detailed statement of the witnesses' expected testimony on each issue. The LRSD further requests that Joshua be precluded from calling any witness for which it fails to provide this information on or before 5 :00 p.m. on July 10, 2002. Finally, the LRSD asks that Joshua be instructed to only identify witnesses that it has interviewed and confirmed their availability for the hearing. 2. May 15 Order: Joshua's Exhibits. On May 15, 2002, the Court also ordered the parties to exchange pre-marked exhibits on or before June 21 , 2002. The Court further stated that \"[a]ny exhibit not pre-marked and exchanged on or before June 21, 2002 will not be received into evidence during the July 22 hearing, absent highly unusual circumstances. A copy of Joshua's Exhibit list and the exhibits provided to the LRSD are attached hereto as Exhibit 2. Joshua failed to provide the LRSD with copies of Exhibits 793, 794, 799, 800 and 801 stating \"[r]equest is hereby made for those exhibits ... \" This request by Joshua is untimely. See Order filed July 1, 2002, p. 1. To the extent Joshua may be in possession of these documents, the LRSD moves in limine to exclude Joshua Exhibits 793, 794, 799, 800 and 801. 3. May 15 Order: Exhibit 803. The LRSD also moves to exclude any additional documents which Joshua may intend to introduce as Exhibit 803. Joshua identified as Exhibit 803, \"The exhibits filed by the Little Rock School District for this hearing.\" This fails to comply with the Court's May 15, 2002 order, as the LRSD understood it. 4. May 9 Order: Good Faith. The Court stated in its order of May 9, 2002 that Joshua would be permitted to present additional evidence on the issue of the LRSD's good faith \"but only to the extent that: (a) it relates directly to the issues of advanced placement courses, guidance counseling, extracurricular activities and student achievement; and (b) it does not duplicate testimony already presented by Joshua on the issue of good faith.\" Order filed May 9, 2002, p. 14 (emphasis in original). Consistent with the Court's Order, the LRSD moves in limine as follows: a. Sadie Mitchell. Joshua called Mitchell to testify on August 1 and 2, 2001. See Tr. August 1, 2001, pp. 564-570 and August 2, 2001, pp. 848-896. Joshua specifically questioned Mitchell about student achievement (see,~. Tr. August 1, 2001, p. 575) and advance placement courses (see,~. Tr. August 1, 2001 , p. 600). Additional testimony from Mitchell on these issues would be duplicative. Accordingly, the LRSD moves to prohibit Joshua from questioning Mitchell about student achievement and advanced placement courses. 2 b. Junious Babbs. Joshua called Babbs to testify on July 5 and 6, 2001. See Tr. July 5, 2001 (all) and July 6, 2001 , pp. 283-340. Joshua specifically questioned Babbs about advanced placement courses (see,~' Tr. July 5, 2001, p. 219), guidance counseling (see,~. Tr. July 5, 2001, p. 228), extracurricular activities (see,~ Tr. July 5, 2001 , p. 218) and student achievement (see,~ Tr. July 5, 2001 , p. 231 ). Accordingly, the LRSD moves to prohibit Joshua calling Babbs as a witness. c. Exhibits. The LRSD moves to exclude the following exhibits not directly related to the issues of advanced placement courses, guidance counseling, extracurricular activities and student achievement: 743, 746, 747, 749, 750, 752, 754, 755, 756, 757, 758, 759, 760, 761 , 762, 763, 764, 771 , 773, 775, 777, 778, 779, 780, 782, 783, 784, 785, 786, 787, 788, 789 801 and 802. 5. Relevance Generally. The LRSD moves to exclude all evidence and testimony of noncompliance with the Revised Plan that was not brought to the attention of the entire LRSD Board of Directors pursuant to Fed. R. Evid. 401,402 and 403. The LRSD's memorandum brief in support of this Motion is hereby incorporated by reference. The LRSD also incorporates by reference its Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status and its Reply Brief in Support of Motion for an Immediate Declaration of Unitary Status. 6. Jim Mosby and Jodie Carter. The LRSD also moves to exclude evidence and testimony related to the removal of Jim Mosby and Jodie Carter as the principals of Southwest Middle School and McClellan High School, respectively, pursuant to Fed. R. Evid. 401,402 and 403. Both men are represented by counsel for Joshua, and filed Complaints against the LRSD on July 7, 2002 related to their removal which are now pending before this Court. The July 22 hearing on whether the LRSD should be declared unitary is not the appropriate forum to decide the merit of their Complaints, and this Court has a long-standing practice of not hearing individual claims as a part of this case. See,~' Docket No. 1874, Order filed June 30, 1993. 3 7. Rebuttal Evidence. This Court's order of May 15, 2002 granted Joshua 30 minutes to present rebuttal evidence pertaining to the three issues tried virtually to conclusion during previous hearings before Judge Wright. Joshua failed to identify any witnesses or exhibits for this purpose. Moreover, none of the witnesses or exhibits would reasonably be construed as \"true\" rebuttal, as defined by Judge Wright. Judge Wright defined rebuttal evidence as evidence necessary to respond to evidence presented by the other side which could not have been anticipated. Tr. Nov. 20, 2001, 399. The LRSD submitted no evidence which could not have been anticipated by Joshua because it had all been previously outlined in the LRSD's Interim Report and/or Final Report. Therefore, the LRSD moves in limine that Joshua be prohibited from presenting any rebuttal evidence on July 22, 2002, at 8:30 a.m. 8. Letters from Joy Springer. Joy Springer is counsel for Joshua's paralegal, and she has not been identified as a witness. However, Joshua has identified as Exhibits 767- 776 a series of letters from her to District personnel related to individual student/parent complaints. The LRSD moves to exclude these letters for several reasons. First, the letters are hearsay reporting hearsay, and they fail to fall within any exception to the hearsay rule. See Fed. R. Evid. 801, 802 803 and 804. Second, the letters are irrelevant in that there is no evidence that these complaints were brought to the attention of the Board. See Fed. R. Evid. 401 and 402 and paragraph 5, supra. Third, any relevance is outweighed by the danger of unfair prejudice where no evidence will be presented that would allow this Court to assess the merit of the complaints made in the letters. See Fed. R. Evid. 403. 9. Joshua Exhibit 791 . Joshua Exhibit 791 appears to be notes from a meeting with Ms. Jo Evelyn Elston, the LRSD's Director of Pupil Services. The LRSD assumes that the notes were prepared by Springer or another Joshua monitor. However, neither Springer nor any other Joshua monitor has been identified as a witness in this case. The LRSD moves to exclude Joshua Exhibit 791 for the same reasons set forth in paragraph 8 above. Joshua Exhibit 791 should also be excluded for an additional reason: the document, standing alone, cannot be 4 authenticated, and Joshua has not identified any witness who will be able to authenticate the document. See Fed. R. Evid. 901. WHEREFORE, the LRSD prays that its Motion in Lirnine be granted; that it be awarded the relief sought herein; and that it be awarded all other just and proper relief to which it may be entitled. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRlCT Christopher Heller (#81083) John C. Fendley, Jr. (#92182) FRIDAY, ELDREDGE \u0026amp; CLARK Regions Center, Suite 2000 400 West Capitol Little Rock, AR 72201-3493 (501) 37 ----~BY: CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by U.S. mail on July 3, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 (VIA z~~~L,l -~ Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 F:IHOME\\FENDLEYILRSO 200 I ldes-mot-limine-7-09-02. wpd 5 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 WRW PULASKJ COUNTY SPECIAL SCHOOL DISTRICT, ET AL. DEFENDANT INTERVENORS INTER VENO RS MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. JOSHUA INTERVENORS' WITNESS LIST REGARDING JULY 22-26, 2002 HEARINGS The Joshua Intervenors plan to call the following persons during the July 22-26, 2002 hearings: I. Ms. Sadie Mitchell - Associate Superintendent for School Services Will dis~uss guidance counseling and her oversight or lack of it within the schools. She will be called on July 23, 2002, and her testimony will be expected to take approximately ten minutes. 2. Mr. Junious Babbs - Associate Superintendent for Administrative Services Will address extracurricular activities and his oversight of those activities as Associate Superintendent for Administrative Services. His testimony will be approximately ten .... minutes and will occur on July 23, 2002. 3. Dr. Marian Lacey - Asst. Superintendent of Secondary Schools a EXHIBIT g 1 f Will discuss her oversight of the secondary schools with respect to guidance counseling advanced placement courses, and extracurricular activities. Her direct testimony will take approximately fifteen minutes. 4. Mr. Jodie Carter - Principal McClellan High School Will discuss special problems with advanced placement courses, guidance counseling, extracurricular activities and the District 's good faith . His testimony will take approximately two hours and will be presented on July 22, 2002. He will also discuss the support and involvement of school board members or the lack of. 5. Ms. Dorothy McDonald - Teacher Will discuss the District's counseling program and problems which affect A.mean American students which have not been effectively addressed by the District. Her testimony will take approximately fifteen minutes. 6. Dr. Michael Faucette - Teacher Central High School Will discuss in detail the problems with the administration of advanced placement courses, the racial effect of the placements, the manner in which the placements are made, how the placements tend to favor one group of children over another, the problems with scheduling and how those scheduling decisions interact with other decisions of placement and counseling; participation in extracurricular activities; the favor given to white students at Central High School; the disparate effect of advanced placement courses with respect to teaching, awards, and other opportunities; and he will discuss the District's good faith compliance. He testimony will presented on July 22nd and is expected to take approximately four hours on direct examination. 7. Ms. Pat Watson - Counselor at Hall High School 2 Will address the District's counseling program and how they are implemented. Her testimony will take approximately 15 minutes. 8. Mr. Kenneth Moore, Assistant Principal at Hall High S~hool Will discuss extracurricular activities and good faith compliance. His testimony will take approximately ten minutes and will be presented July 23, 2002. 9. Ms. Pam Mercer - Parent of Former Student of Central High School Will discuss her efforts as a parent with respect to securing fair and equitable treatment for her children, Crystal and Justin, while they were at Central and how she was rebuffed along the way. She will also discuss the atmosphere at Central High School as it relates to privilege being extended to white children from middle class families. It will also cover counseling and extracurricular activities. Ms. Mercer's testimony will take approximately twenty minutes on direct examination. l 0. Mr. Justin Mercer - Former Student at Central High School Will address the problems he experienced of a racial nature while at Central High School and his efforts to obtain assistance and help from teachers, counselors and administrators. His testimony will take approximately ten minutes. 11 . Crystal Mercer - Former Student at Central High School Will address the District 's counseling services from a African American student 's perspective. Her testimony will take approximately ten minutes. 12. Ms. Paulette Blevins - Former teacher at Central High School Will discuss how the grading system was manipulated so as to change grades and otherwise provide favor to white children at Central High School. Her testimony will take 3 approximately fifteen minutes on direct examination. 13 . Mr. Jimmy Mosby - Principal of Southwest Middle School Will discuss the efforts of the District to comply with the ~]an with respect to good faith, guidance counseling and extracurricular activities while at Southwest Middle School and Hall High School. His testimony will take approximately twenty minutes on direct examination. 14. Ms. Sharon Brooks - Principal of Stephens Elementary School Will testify regarding good faith compliance and how she avoids it. The specific matter she will address will be unreported punishment without the involvement of a guidance counselor regarding the taking away of educational privileges for black boys for a period of two months while she was principal ofRightsell Elementary School. Her testimony will take ten minutes. I 5. Ms. Susie Davis - LRSD Coordinator of English Will discuss the efforts of the Instruction Department to communicate Instruction Department standards to principals and teachers with respect English and Reading and other subjects which she supervises in her capacity as special assistant to Dr. Bonnie Lesley. Although this is not her title, she was regarded as the agent for Dr. Lesley within the schools. She will also discuss the extent of her and Dr. Lesley's association with respect to principals and counselors. Her testimony will take approximately ten minutes. 16. Ray Gillespie - Fonner Athletic Director Will discuss his role with respect to extracurricular activities and monitoring activities to ensure the absence of racial discrimination. His testimony will take approximately fifteen 4 minutes. 17. Cassandra Norman - Principal at J.A. Fair High School Will discuss the District's good faith compliance and her school;'s disparate treatment of black and white students. She will also discuss the support and involvement of school board members or the lack of 18. Judith Pickering - Teacher - J.A. Fair High Schools Will discuss the racial atmosphere, advanced placement courses and extracurricular activities at J.A. Fair. Her testimony should take approximately fifteen minutes. 19. Foster Allen - Teacher at Central High Will discuss advance placement practices at Central High School and his relationship to those practices. His testimony will take five minutes. 20. Romona Horton and Bennie Horton - Parents of Former Central High Student Will discuss problems with AP placement of their child at Central High School. Their testimony will take five minutes a piece. 21 . Alisha Allmon - Teach er Will discuss advanced placement practices at Central High School and his relationship to those practices. Her testimony will take five minutes. 22. Chris Payne- Former Student at J.A. High School Will discuss his efforts to participate in Quiz Bowl at J. A. Fair. His testimony will take ten minutes. 23 . Ms. Sue Strickland, Dr. Katherine Mitchell, Dr. Michael Daugherty, Mr. Tony Rose Mr. Larry Berkley, Ms. Judy Magness and Mr. H. Baker Kurrus 5 Will each give testimony regarding good faith compliance and their involvement in and knowledge of the development and implementation of guidance and counseling programs, advanced placement courses, regular courses, class sizes of regular courses, pupil teacher ratios between regular , advanced placement, honors and gifted and talented courses. Their testimony together is expected to take one hour on direct examination. 24. Jeanette Carter and Dr. Vertie Carter Will discuss problems which they experience with respect to the AP teachers and administrators and counselors regarding placement, retention and fair treatment in the AP program. Their testimony will take fifteen minutes. 25 . Ms. Ethel Dunbar - Principal Franklin Elementary School Will discuss elementary good faith compliance, gifted and talented courses, guidance counseling and the assistance received with respect to these issues from the Division of Instruction. Her testimony will take approximately thirty minutes. 25. Mazie Phillips - Counselor at Fair High School Will address the District's counseling program and how they are implemented. Her testimony will take approximately 15 minutes. 26. Leon Adams - Director of Federal programs Will discuss efforts to use Title I funds to promote the educational interests of \"all\" children rather than the children who were the intended beneficiaries of those funds; the correlation between counseling services, advanced placement courses and good faith compliance. His testimony will take approximately twenty minutes. 6 e . 27. D.J. Thames and Avis Thames - Student and Parent - Fair High School Will discuss the District's good faith compliance with respect to extracurricular activities. This testimony will take approximately ten minutes on direct examination. 28. Ann Marshall, Gene Jones, and Margie Powell - ODM Monitors Will discuss good faith compliance. Their testimony will take approximately thirty minutes. 29. Ray Simon Will discuss the District 's decision and the reason for it to retreat from the remediation requirement for loan forgiveness. His testimony will address the roles of Drs. Ross and Carnine with respect to discontinuing emphasis upon remediation of Black students relative achievement levels. It will take approximately twenty minutes. The exhibit which he will address is an agreement between the State of Arkansas and the Little Rock School District the description of about which I am not certain. 30. Dr. Terrence Roberts Will address the issue of good faith compliance, guidance counseling and relationship between regular and advanced courses. His testimony will take approximately twenty minutes and will be presented on July 23, 2002. 3 I . Dr. Stephen Ross Will testify about the District 's good faith compliance and advanced placement and honors courses. He will address the need for criteria for placement as will Dr. Roberts (see above). His testimony will take approximately thirty minutes. 7 Respectfully submitted, John W. Walker, P.A. 1723 Broadway Little Rock, Arkansas 72206 501- 374-3758 501-374-4187 (fax) .--, ' (_~?__, .. _./{ John W. Walker - Bar No. 64046 CERTIFICATE OF SERVICE I hereby state that a copy of the foregoing witness list has been hand delivered to Counsel for the Little Rock School District on this 24th day of June, 2 02. 8 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. CASE NO. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. DEFENDANTS INTERVENORS INTER VEN ORS MRS. LORENE JOSHUA, ET AL. KATHERINE W. KNIGHT, ET AL. JOSHUA INTERVENORS' EXHIBIT LIST REGARDING JULY 22-26, 2002 HEARINGS The Joshua Intervenors plan to use the following documents during the July 22-26, 2002 hearings: 743 . E-mail dated July 2, 2001 from Virginia Johnson to Bonnie Lesley (page 182) 744. E-mail dated October 19, 2000 from Gary Smith to Bonnie Lesley (page 290) 745 . E-mail dated June 29, 2001 from Sueellen Mann to Gail Hester and subsequent dated July 2, 2001 (page 167) 746. E-mail dated January 18, 2001 from Junious Babbs to Kathy Lease (page 12) 747. E-mail dated July 2, 2001 from Mona Briggs to Bonnie Lesley (page 191) 748. E-mail dated November 16, 2000 from Les Carnine to Bonnie Lesley 749. E-mail dated November 21 , 2000 from Ken Savage to Kathy Lease (page 38) 750. E-mail dated March 7, 2001 from Kathy Lease to T Rose and subsequent dated March 7, 2001 at 12:44 p.m. (page 7) 751 . E-mail dated July 15, 2001 from Bonnie Lesley to Lionel Ward and subsequent 1  EXHIBIT ~ 752. 753. 754. 755. 756. 757. dated July 16, 2001 (page 88) E-mail dated July 14, 2001, July 15, 2001 and July 16, 2001 from Bonnie Lesley to Ken James (page 96) E-mail dated July 15, 2001 from Bonnie Lesley to Chris Heller (page 102) E-mail dated April 18, 200 I from Bonnie Lesley to Kathy Lease and subsequent response (pages 708 and 709) E-mails dated October 25, 2000 from Bonnie to Irma Truett and Kathy Lease re: Benchmark scores (pages 16 and 17) E-mail dated June 28, 2001 8:00 p.m. from Mona Briggs to Bonnie Lesley (page 192 E-mail dated June 28, 2001 9:08 a.m. from Bonnie Lesley to members of her staff (Page 192 and 193) 758. E-mails dated September 29, 2000 between Bonnie Lesley and Kathy Lease re: Priorities 2000-01 (Page 51) 759. E-mail dated October 3, 2000 between Les Carnine. Bonnie Lesley and Kathy Lease Re: ALT Check-in (Page 50) 760. E-mail dated June 20, 2001 from Bonnie Lesley to Beverly Griffin re: semester test Exemption (Page 351) 761. E-mail dated June 25, 2001 from Bonnie Lesley to Clay Fendley (page 297) 762. F-mails dated June 29, 2001 between Sadie Mitchell, Deanna Eggeston and Bonnie Lesley (pages 2_18 - 219) 763 . E-mails dated February 12 and 13, 2001 Lesley, Ruffins, Lease and Carnine (page 19) 764. Email dated February 13, 2001 from Kathy Lease to Les Carnine (Pages 17 and 18) 765. Memo dated November 17, 2000 from Dr. Faucette to Mrs. Hargis re: exclusion of Regular English students fro Jennie Calder lecture 766. Email dated September 27, 2000 from Sadie Mitchell to Junious Babbs (Page 1) 2 767. Letter dated December 16, 1998 to Les Carnine from Joy Springer 768. Letter dated February 18, 1999 to Sadie Mitchell from Joy Springer 769. Letter dated March 17, 1999 to Rudolph Howard from Joy Springer 770. Letter dated October 14, 1999 to James Washington from Joy Springer 771 . Letter dated February 28, 2000 to James Washington from Joy Springer 772. Letter dated February 28, 2000 to James Washington from Joy Springer re: Scouts 773 . Letter dated August 28, 2000 to Ray Gillespie from Joy Springer 774. Letter dated September 12, 2000 to Les Carnine from Joy Springer 77 5. Letter dated October 10, 2000 to Les Carnine from Joy Springer 776. Letter dated September 13, 2000 to James Washington from Joy Springer 777. E-mail dated June 6, 2000 to Les Carnine from Don Stewart (Pages 100-0 1) 778. E-mail dated April 19, 2001 from Deanna Eggeston to Don Stewart (Page 37) 779. E-mail dated April 25, 2001 from Kathy Lease to Mark Mi!Ihollen 780. E-mail dated May 25, 2001 from Bonnie Lesley to Debbie Berry (Page 358) 781. E-mail dated June 7, 2000 from Clay Fendley to Bonnie Lesley 782. E-mail dated June 7, 2000 from Bonnie Lesley to Mary Paa! (Page 136) 783 . E-mail dated April 17-18, 2001 to Don Stewart from Bonnie Lesley 784. E-mail dated July 12, 2001 to Bonnie Lesley from Don Stewart (240) 785 . E-mail dated February 28, 2001 to Bonnie Lesley from Don Stewart 786. Memo dated February 24, 1999 to Gayle Bradford from James Washington 787. Memo dated March l 1, 1999 to Les Carnine from James Washington 788. Letter dated April 12, 1999 to Gayle Bradford from James Washington 3 789. Letter dated March 22, 1999 to Gayle Bradford from James Washington 790. Letter dated April 26, 1999 to John Walker from Les Carnine 791 . Memo dated May 3, 1999 regarding visit to Pupil Services \u0026amp; Administration buildings  792. Email dated 9/30/300 from Marian Lacey to Sadie Mitchell w/attachments 793 . High School Master Schedule Audit, Little Rock School District 2001-2002 794. School Yearbooks for Central, Hall, McClellan, Fair, Hall and Parkview for school years 1998-99 through 2001-2002 795. Letter dated February 28, 2002 from Dr. Michael Faucette to Jane Welch regarding enrollment in Creative Writing course 796. Little Rock Central - Requests for Course - Creative Writing 797. Essay by Justin Mercer entitled: \"Black at Central: My 45 Years of Struggle\" 798. Memo dated August 4, 1999 from Bonnie Lesley to Ann Marshall 799. Academic awards reports for the period 1998 through 2002. 800. Rank Lists for Hall, Parkview, Central, McClellan and Fair for graduating senior classed for the period 1998 through 2002 801. LRSD Quarterly Status Reports - School Services - 1999 through 2002 802. Deposition of School Board Members - a. Sue Strickland b. Tony Rose c. Judy Magness d. Larry Berkley e. Katherine Mitchell 803 . The exhibits filed by the Little Rock School District for this hearing Joshua notes that some of the foregoing exhibits are in the exclusive possession of the Plaintiff. Request is hereby made for those exhibits which include numbers 793, 794, 799, 800. 801. 4 By: Respectfully submitted, John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 CERTIFICATE OF SERVICE 5 / I LESLEY, BONNIE From: Sent: To: Subject: LESLEY, BONNIE Monday, July 02, 2001 2:24 PM 'heller@fec.net' Latest Fax I had Aniia fax over to you ihe latest-a bunch of stuff on our literacy plan. 743 1. He already has a copy of the PreK-3 Literacy Plan. Other information is in the Interim and Final Compliance Reports. 2. He also has the test results for SAT9, Grade 4 Benchmark, and ORA-so those are the results. 3. I don't know what he means by monitoring reports. A The assessment program is outlined in several pages in the Compliance Report. 5. I can copy those policies and regs for him. Want me to go ahead and send? Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 S. Pulaski Little Rock, Arkansas 72206 501/ 324-2131 501/324-0567 (fax) - LESLEY, BONNIE From: LESLEY, BONNIE Sent: Monday, July 02, 2001 1 :44 PM To: JOHNSON, VIRGINIA Subject: RE: Needed Information-Important! Do you have dates for these three times? --Original Message-- From: JOHNSON, VIRGINIA Sent: Monday, July 02, 2001 1 :15 PM To: LESLEY, BONNIE Subject: RE: Needed Information-Important! Three times I sat in on sessions with Steve Ross along with other PRE staff. At no time did we review any NSF documents. The sessions focused on document review of the ESL and Pre-K Literacy reports. I have never \"consulted\" with him. I have never consulted with Dr. Roberts either. -Original Message-- From: LESLEY, BONNIE Sent: Monday, July 02, 2001 12:07 PM To: ADAMS, LEON; ARNOLD, LAURA BETH; AUSTIN, LINDA; BRANDON, BARBARA; BRIGGS, MONA R.; BROADNAX, KAREN; BUSBEA. PAT; CARR, MARCELLINE; CARSON, RENE': CLEAVER, VANESSA; CLIFFORD, ELIZABETH: CRAWFORD, PAMELA; DAVIS, SUZI; DEBBIE MILAM; DILLINGHAM, YVETTE; DONALDSON, MABLE; FINNEY, ANTONETTE; FLETCHER, DANNY; FREEMAN, ANN; GILLIAM, ANITA; GLASGOW, DENNIS; HARDING, CASSANDRA; HUFFMAN, KRIS; JACKSON, MARION; JOHNSON, VIRGINIA; JONES, DOCIA; JONES, STEPHANIE; KIILSGAARD, SHARON; KILLINGSWORTH, PATRICIA; KOVACH, RENEE; LAJUANA RAINEY; LOYA, STELLA; MARION BALDWIN; MARTIN, PAULETTE: McCOY, EDDIE; McNEAL, MARIE; MILAM, JUDY; NEAL, LUCY; PAAL, MARY M.; PAUL, ANNITA; PERRITT, YORIKO U.; PRICE, PATRICIA; RYNDERS, PAULA; SMITH, GARY; SMITH, PAULA; TEETER, JUDY; WALLS, COLLE::N; WARD, LIONEL; WIWAMS, BARBARA; WILLIAMS, ED: WILSON, LEVANNA; WOODS, MARION Subject: Needed Information-Important! 182 \"\" smmitch@lrsdadm.lrsd.k12.ar.us -Original Message-- A From: CARNINE. L!:::SLIE V. W Sent: Thursday, October 19, 2000 1:59 PM To: MITC~ELL. SADIE Cc: NEAL, LUCY; LESLEY, BONNIE; L!:::ASE. KATHY R.; SMITH, GARY Subject: RE: Will we have the software available by 2nd Semester? What system(s) are being looked at? -Original Message- From: MITCHELL, SADIE Sent Thursday, October 19, 2000 10:33 AM To: CARNINE, LESLIE V. Subject: FVI/: Sadie Mitchell smmitch@lrsdadm.lrsd.k12.ar.us -Original Message- From: SMITH, GARY Sent: Thursday, October 19, 2000 10:25 AM To: LESLEY, BONNIE Cc: WARD, LIONEL; GADBERRY, BRADY L.; NEAL. LUCY; MITCHELL, SADIE; CAWTHON, FRANCES H.; LACEY, MARIAN G.; Subject: Dr. Lesley, ADAMS, LEON; AUSTIN, LINDA; BRADFORD, GAYLE; BRIGGS, MONA; BROADNAX, KAREN; CLEAVER, VANESSA; COLFORD, SUSAN: DAVIS. SUZI: DONALDSON, MABLE; Eddie McCoy; ELSTON, JO; FULLERTON, JAMES; GLASGOW, DENNIS; HAWKS. EVERETT; KEOWN, ADA: MARION BALDWIN; NORMAN, CASSANDRA R.; PRICE. PATRICIA; TATUM. KATHY; WYATT-ROSS. JANICE The consensus recommendation of the SAIP committee is for a SAIP be created for students at all grade levels who are not proficient based state mandated benchmark tests and/or District mandated Achievement Level Tests (ALT) - Our specific recommendations to implement this are;  obtain/create the software necessary to identify students not proficient on state benchmarks/district assessment that will also generate/print the adopted SAIP form with student information and test scores printed on the SAIP form  obtain/create the software that will generate/print specific strategies (along with and printed checklists for those who wish not to use computer) developed by a committee made up of teachers and curriculum specialists as a resource available for teachers to use (especially secondary teachers) - this can be attached to the SAIP form as needed  develop an \"instructional\" sheet for the SAIP form that will explain in more detail the information to documented and procedures to follow  provide training on the use of SAIP form directly to teachers (the exact training may have to be determined at a future date based on the development of software noted above) - delivery of training would need to be coordinated with staff development for most effective and comprehensive presentation to all teachers to all of you in Cyber Land - is there anything else I forgot? - thanks Gary 290 LESLEY, BONNIE - From: Sent: To: Cc: Subject: Message Flag: Due By: Flag Status: BABBS, JUNIOUS Monday, July 02, 2001 8:08 AM ELSTON, JO NEWBURN, LINDA; LESLEY, BONNIE RE: Counseling Program Kit Follow up Monday, July 09, 2001 5:00 PM Flagged It is positive to see that things are moving forward on this \"01 - 02 priority. 745 Prior to coming to closure, I ask that your look to set up a time to fill me in on the \"buy in\" of players called upon (committee members) to develop districtwide literature to be distributed. The connection to Curriculum and Instruction is a biggee that should be run through Dr. Lesley. I will look to give you a call a bit later regarding B/W high school scholarship information and the 3 - 4 year comparisons. To date, this information has not been provided. Junious C Babbs, Jr jcbabbs@stuasn.lrsd.kl2.ar.us Little Rock School District -Original Message- From: VANN, SUELLEN Sent: Friday, June 29. 2001 11 :08 AM To: HESTER. GAIL Cc: ELSTON, JO; BABBS. JUNIOUS Subject Counseling Program Kit Jo Evelyn Elston is in my office, and we're working on a counseling program kit with insert sheets. Mr. Babbs will pay for this out of his budget. I'm going to talk with Kristy Black about the design of the kit and sheets, but I figured we'd better give you the info for the quote since it looks like a pretty good-sized job. The kit will be one-pocket on right side with a business card slot; the kit will print front and back with one pocket. There won't be a separate \"wing\" like the recruitment kit had. Quantity: 25,000 Jo Evelyn likes the paper we used for the recruitment kit and insert sheets, so we could just go with those. The insert sheets: 1. JOBBS sheet - print front only; quantity 30,000 -2. Early college planning sheet - print front only; quantity 20,000 3. PCEP sheet - print front only; quantity 20,000 4. What Does Counselor Do? sheet - print front only; quantity 30,000 5. Counseling program sheet - print front and back; quantity 30,000 6. Couseling fact sheet - print front only; quantity 30,000 The kit and insert sheets would print 4-color. Have I forgotten anything? No bleeds. THANKS! (Mr. Babbs, you might want to set up a lemonade stand on Sherman to pay for this!!!!!) Suellen 5. Vann; APR Director of Communications Little Rock School District (SO 1) 324-2020 167 LESLEY, BONNIE - From: LEASE, KATHY R. Sent: To: Thursday, January 18, 2001 6:06 PM BABBS, JUNIOUS Subject: RE: Section 2 Thanks for the input! We have been with the program evaluation consultant all qi3y, so I just finished editing the report to send to Bonnie. I will incorporate your changes and suggestions, and send it to her again. Do you want the Power Point as an Appendix or the outline for it incorporated into the body of the report? I'm so sorry I am just getting around to my email, but I'll take the heat for sending another correction. Not enough hours in the day!! Kathy PS--Thanks for the encouragement! ---Original Message--- From: BABBS, JUNIOUS Sent: Thursday, January 18, 2001 10:53 AM To: LEASE, KATHY R. Cc: GADBERRY, BRADY L. Subject: PN: Section 2 Good information. Working with timelines and specific report information submissions for this division, I have not been able to dissect in great detail but my original thinking touches upon 2 - 3 items that may warrant some review. You will note that Brady is also being forwarded who can provide his thinking as well. Future compliance sessions will toss this about for further revision. 1. Inclusion of the power point presentation. ~ -When touching upon Or. Ross - It may be advantageous to refer to \"looks to build or acknowledges\" specific district W'ettorts as opposed to \"praising\". 3. It would be appropriate to list current data that is available. Be reminded that when writing materials for our report submission, we will include \"districtwide\" not be there yet bui this will help to serve as an indicator of established bas Ine information from which we will jump off of. Keep your chin up . . Junious C Babbs, Jr jcbabbs@stuasn.lrsd.kl2.ar.us Little Rock School District -Original Message- Frorn: LEASE. KATHY R. Sent: Wednesday, January 17, 2001 6:14 PM To: LESLEY. BONNIE Cc: BABBS. JUNIOUS; DILLINGHAM. YVETTE; HUFFMAN, MAC; JOHNSON, VIRGINIA; McCOY. EDDIE; SUMMERVILLE, ROSALYN P.; TRUETT, IRMA; WILLIAMS, ED Subject: Section 2  File: Oeseg Report (2.7.1).doc  Bonnie, Here is the first draft of Section 2.7.1. Please let me know what additions or revisions you want made. Thanks, Kathy PS-PRE folks-Look to see what I left out, what typos I have. and what needs tc be edited. Thanks 12 747 Chris, I am in LR this week-end and you can reach me at 868-4289. I can come to your office to help, or I can work from my office. Call if you need me. - Are we having fun yet? Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District  3001 S. Pulaski Little Rock, Arkansas 72206 501/324-2131 501/324-0567 (fax) LESLEY, BONNIE From: LESLEY, BONNIE Sent: To: Monday, July 02, 2001 8:16 AM BRIGGS, MONA R. Subject: RE Thank you, my friend. I \"vegged\" all week-end, seriously \"vegged.\" I know this will be a HARD week. Yes, I hear Kathy is on his witness list. It'll be interesting. -Original Message- F rom: BRIGGS, MONA R. Sent: Monday, July 02, 2001 6:53 AM To: LESLEY, BONNIE Subject: RE: I have been thinking a lot about you. You can't let this bring on a stroke or something. You don't need this kind of pressure all by your self!! It is not worth it-no job is worth it. And you can't take on the woes of a district that has been screwing up for a decade or more. I hope Kathy does get called to testify. She needs to have to answer to John Walker and if it bodes ill for the district so be it! She and Carnine just waltzes out of here and leaves everyone else holding the rope. You make time for sleep and food!! /v\\ona R. Briggs Middle Level Specialist Little Rock School District 501-324-2412 \"Seek First to Understand; then to be understood\" (Covey) -----Original Message----- From: LESLEY, BONNIE Sent: Friday, June 29, 2001 7:55 AM Tc: BRIGGS , MONA R. 191 STEWART, DON.ALO M: . From: CARNINE, LESLIE V. Sent: Thursday, November 16, 2000 12:23 PM To: LESLEY, BONNIE Cc: BABBS, JUNIOUS; Mitchell, Sadie; GADBERRY, BRADY L.; STEWART, DONALD M. Subject: Upper Division Cl2sses and Afric2n Americans Were you able to pull together the numbers--l2st year and this year's enrollment? John Walker also has called and is questioning his non involvement in the policy development(IKF). I told him I thought the evidence was so strong for Black kids and that I would send him the information. When was the first time he would have received the policy for comment? He is raising much the same issue-impact on black kids as Katherine ... lKF Subject: L::SL-'Y, BONNIE; CARNINE, LESUE V. RE: C~art Revisions Ken, Th2nks so much for this expl2nation of what happened. The important thing about making a mist2ke is finding a way not to make it again. I think you have done this, and we will all profii from ii. I know you fee! re2lly badly about this, but the most important thing is to correct the process. We all make mistcakes. We are committed to quality in PRE and that includes continuous improvement and continuous learning. This experience has provided us with both. What a bonus!' Thanks for helping with the corrections. I will take care of getting them to the appropriate Cabinet people and getting them redistributed to the Board. -Original Message- F rom: SAVAGE, KEN Sent: Tuesday, November 21 , 2000 10:31 AM To: LEASE. KATHY R. Subject: Chart Revisions Dr Lease, I have reviewed the charts that I created from the benchmark d2t2. When I creaied the charts originally I had encountered a problem simil2r io the one described by Dr. Lesley, but I specifically remember correcting ihe error prior to sending the charts to you. Needless to say, I was more than a little alamned that the charts you received contained errors because the charts I have appe2r to coincide with the data I have. I went on further to investigate by looking at the email I sent you. And there, big as day, the error had reappeared. So the c:-iarts I had sent you were incorrect because they were never updated in the manner that I expected. Here is what I believe happened based on what I remember and what I learned this morning: e: I created the charts in an Excel document that contained the data. I copied the charts only out into another document, creating what is called a linked object. I printed and reviewed the charts and this is when I found the error. I corrected the error and reopened the \"linked\" charts. They appear to have accepted the corrections. I emailed the file wiih the linked charts to you rather than the file containing the charts and data. Here's where the problem arose and information that I have just become aware of this morning. First, when using linked objects, each time you open the file you are given a choice to update the information. Unfortunately, I only sent you the ch2rts and not the daia that drives them. So regard less, you could not have updated the charts. Second, and more importantly, even though a chart has been updated previously, it will always revert back to the original chart that was corrected no matter how many times the data has been updated. Third, if the file with the original data is already open, when the \"linked\" item is opened it automatically updates without intervention. I believe that the second option above is what occurred. The charts were created, an error was encountered and corrected, the link was updated but the chart reverted back to its original when the file was closed. What I propose to do to prevent this kind of fiasco in the future is: 1. Only send charts embedded in files which cont2in the data--no linking. 2. Only create the \"linked\" charts after ALL data h~s been proofed and corrected. \" The erroneous data was only last year's data for black students in the comparison between this year and lasfyear for both) Math and Literacy. I 2m printing and will send ten revised copies of the charts. Ken. 38 LESLEY, BONNIE - From: Sent: To: Subject: LEASE, KATHY R. Wednesday, March 07, 2001 12:44 PM BABBS, JUNIOUS , RE: Research Committee Meeting 75a Bonnie said that the evaluations weren't part of the court submission. Is that still correct? If so, then it looks like we shoula slow down a bit and do It rigm. Are you In agreement? ----,. KL --Original Message--- From: BAS6S, JUNIOUS Sent: Wecnesday, March 07, 2001 12:36 PM To: L=.\u0026lt;1.SE, KATrlY R. Subject: RE: Research Committee Meeting Original thinking was to get another date scheduled prior to the March 15th couri submission but with iniorm2tion you h2ve nored, considerc::tion of a later date is necessary. I don't see major conflict. Junious C Babbs, Jr jcba bbs@stuasn .lrsd. kl 2.ar. us Little Rock School District - Original Message- F rom: LEASE. KATHY R. Sent: Wednesday, March 07, 2001 12:27 PM To: 'trrose@ualr.edu'; BABBS. JUNIOUS Subject: Researc~ Committee Meeting Importance: High We have had another committee member who will not be able to come to the meeting on the 13th. We now have agenda meeting 2t 5:00, and Steve can only be with us by phone. What do you all think about postponing the meeting until after spring break? That would give John plenty of time to make revisions, and we can schedule a meeting when Steve can be with us. I hope to have the template/program evaluation guidelines completed by then as well. Let me know what you thin kl Kathy Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc. lrsd .kl2.ar. us 7 LESLEY, BONNIE From: LESLEY, BONNIE Sent: Monday, July 16, 2001 7:2.d. PM To: MITCHELL, SADIE Subject: RE: Documents yes, th2nks. I need as2p. -Oriainal Messaae- From:  MITCHELL. SADIE Sent: Monday, July 16, 2001 5:51 PM To: LESL::Y, BONNIE - Cc: WASHINGTON, CHARLOTTE Subject: Docum~nts We got the list of documents on file done but I forgot to remind Ch2rlotte to send it to you. She is gone for the day and it is on her computer. You will have it first thing in the morning. Sadie Sadie Mitchell smmitch@lrsdadm.lrsd .kl2.ar.us LESLEY, BONNIE From: LESLEY, BONNIE A Sent: W To: Monday, July 16, 2001 7:24 PM WARD, LIONEL Subject: RE: SAIP He requested info from me. I told him I had given him all I had but that you are the administrator on this issue. I was following up to see if he had contacted you. -Original Message- From: WARD, LIONEL Sent Monday, July 16, 2001 4:29 PM To: LESLEY. BONNIE Subject: RE: SAIP Are you irying to tell me something? I have not received any such request from Mr. Walker. If he talks with me, I will talk to you about a proper response first. One basic problem with implementation is in the thought some might harbor which explains why their efforts started late in the game. I am sure some folks faced more struggles than others. Clearly, schools must satisfy the requirements with wise, careful and timely deliberations this year . ., ----__ ....  / --Original Message- From: LESLEY, BONNIE Sent: Sunday, July 15, 2001 3: 49 PM To: WARD, !..!ONEL SubjeC::: SAIP Lionel, h2s Mr. Walker requested anything from you about the implementation of SAIPs? If so, what did you send . to him? Thanks. v-- Dr. Bonnie A. Lesley, Associace Superinte!7dent for Instruction Uttie Rock Scheel District 88 752 501/324-0567 (fax) - LESLEY, BONNIE From: LESLEY, BONNIE. Sent: Monday, July 16, 2001 8:16 AM To: JAMES, KENNETH Subject: RE: Work in Progress Absolutely! -Original Message- From: JAMES. KENNETH Sent: Monday, July 16, 2001 7:54 AM To: L::SLEY, SONNIE Subject: RE: Work in Progress Bonnie: I agree. The work and time that you have invested in this will indeed pay off. as the testimony unfolds. It will be interesting to see how the judge handles all of this information and to observe her thought process. Ken -Original Message-- From: LESLEY, BONNIE Sent: Sunday, July 15, 2001 9:4.2 PM To: JAMES, KENNETH Subject: RE: Work in Progress When I left today, I left a lot still un-done, but I left feeling more and more certain that we have strong evidence that we did the plan. This is going to be helpful to me in remembering all the efforts-even if Chris decides not to use some of it as evidence. I think it will particularly be strong when we combine what Sadie has with ours in this Division. -Original Message- From: JAMES, KENNETH Sent: Sunday, July 15, 2001 9:34 PM To: LESLEY, BONNIE Subjec~: RE: Work in Progress Bonnie: I have reviewed both documents and they are excellent at showing what has been accomplished in the are2s of evaluation and assessment 1 Great job' We will touch base tomorrow. Ken -Original Message- From: LESLEY, BONNIE Sent: Saturday, July 14, 2001 6:24 PM To: 'heller@fec.net'; JAMES, KENNETH; MITCHELL, SADIE Subject: Work in Progress I've worked today on getting the ideas laid out about assessment/program evalu2tion. That includes collecting and organizing stacks of p2per that document our work and processes. In addition, ple2se see the attached documents to determine if this is where we want to go. I welcome your feedback.  Fiie: 1 Program i:1aluation.doc \u0026gt;\u0026gt;  File: 1 Assessment Grid.doc  96 Little Rock, ArkaT1S2s 72206 501/324-2131 - 501/ 324 -'.)567 (fax) LESLEY, BONNIE From: Sent: To: Cc: Subject: LESLEY, BONNIE Sunday, July 15, 2001 3:41 PM 'heller@fec.net' JAMES, KENNETH SAIPs Mr. Walker requested on June 20 the follow: \"Please advise whether you have information regarding the District's implementation of STt!dent Academic Improvement Plan (SAIP) as required by the State. If so, please share with this this office.\" I replied: \"You will find that information in the March 2001 Compliance Report in Section 2. 7. I do not have any information beyond what you will find there since the implementation is done at the school level. Leonel Ward is in charge of implementation.\" When I searched everything for the documents I needed from you, I found several memos in Learning Links that I had forgotten about-about the philosophy in implementing SAIP, sample SAIPs done by Price, Glasgow, and Davis, the memo establishing the committee to develop the program. the memo to the board, etc. Should I forward those to Mr. Walker as well? . Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District A 3001 5. Pulaski W little Rock, Arkansas 72206 501/324-2131 501/324-0567 (fax) LESLEY, BONNIE From: LESLEY, BONNIE Sent: Saturday, July 14, 2001 6:24 PM To: Subject: 'heller@fec.net'; JAMES, KENNETH; MITCHELL, SADIE Work in Progress I've worked today on getting the ideas laid out about assessment/program evaluation. That includes collecting and organizing stacks of paper that document our work and processes. In addition, ple2se see the attached documents to determine if this is where we want to go. I welcome your feedback. ~ 1 Program Evalualion.aoc i Assessment Grid.doc Dr. Sonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 5. Pulaski a :ttle Rock, Arkansas 72206 ~ 01/324-2131 501/ 324-0567 (fax) 102 . LESLEY, BONNIE - From: Sent: To: Cc: Subject: Don Crary [dcrary@newfuturesforyouth.org] Wednesday, April 18, 2001 1 :33 PM LESLEY, BONNIE mopierce@newfuturesforyouth.org Re: Computer with Access Great. We can pay for it. I'm sure it will be cheaper if it is purchased through the district contract. The district can invoice us and we will reimburse them for the cost. Don -Original Message- From: LESLEY, BONNIE \u0026lt;BALESLE@IRC.LRSD.K12.AR.US\u0026gt; To: 'dcrary@newfuturesforyouth.org' \u0026lt;dcrary@newfuturesforyouth.org\u0026gt; Cc: BRIGGS, MONA R. \u0026lt;MRBRIGG@ANNEX.LRSD.K12.AR.US\u0026gt;; PAAL, MARY M. \u0026lt;MMPAAL@ANNEX.LRSD.K12.AR.US\u0026gt; Date: 04/18/2001 12:50 PM Subject: Computer with Access \u0026gt;I talked with Mona about your need for a dedicated computer somewhere in the \u0026gt;district so that your evaluator can come work on direct access to the data \u0026gt;base. She is arranging for an additional computer drop in the office that \u0026gt;Mary Paa! will have at Garland. Can you all purchase the computer out of . your budget? \u0026gt;Dr. Bonnie A. Lesley, Associate Superintendent for Instruction \u0026gt;Little Rock School District \u0026gt;3001 S. Pul;:3ski \u0026gt;Little Rock, Arkansas 72206 \u0026gt;501/324-2131 \u0026gt;501/324-0567 (fax) \u0026gt; \u0026gt; LESLEY, BONNIE From: Sent: To: Cc: Subject: Bonnie, LEASE, KA THY R. Wednesday, April 18, 2001 12:32 PM LESLEY, BONNIE MITCHELL, SADIE; CAWTHON, FRANCES H.; LACEY, MARIAN G. RE: ALT Results --.......__ What group of principals did you meet with yesterday? Do I need to contact them? I explained to all of them when we did the testing calendar that we could get results back to everyone before school was out, if they followed the schedule. If there are some that we need to follow up with, please let me know who they are. We are returning ALT results as quickly as schools get them in. The whole purpose of setting up the schedule like it is centers around being able to get the results back to everyone before school is out. District results can't be calculated until  I schools are in. That is why it is imperative that everyone stay on schedule. Both teachers and parents will get their suits unless someone doesn't follow the schedule. Second grade results have all been returned to the schools, along with two copies of the parent report. High school preliminary results have been returned to Parkview and Fair. McClellan's results are here and are being scored. Central and Hall have not turned in their answer sheets yet. All make-ups were to have been completed by this past Monday. Reiests for high schools are due back on Friday. The first page of the parent report can be printed, but we can 't print the longitudinal report for parents unless all high schools are in.  708 Our elementary schools did a great job during 2nd grade testing; so if they keep that up, we will sail right through their scoring and printing. They have all of their results. .  \\/Ve're still missing two of the middle schools' Algebra I I geometry results as of this morning. We are having a scoring robiem with the high school science tests, but NWEA is working on it. The subject specific math and science tests require no retests, so that shouldn't hold things up. Also, we have provided data on request any school who wants to know last fall's ALT scores for their rising grade students. If you have any other questions, please let me know. Kathy ---Original Message---- F rom: LESLEY, BONNIE Sent: Wednesday, April 18, 2001 10:37 AM To: LEASE, KATHY R. Subject: ALT Results l met with a group of principals yesterday who suggested to me that if they can't receive their ALT results before school is out that there is no use in sending them at all. Kids and parents need them quickly, and the school needs them quickly in order to plan for next school year. What our your chances of being able to do that? Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 S. Pulaski Little Rock, Arkansas 72206 501/324-2131 501/324-0567 (fax) LESLEY, BONNIE \u0026amp; om: . ent: To: Subject: Rose.doc Paulette Mabry [pmabry@newfuturesforyouth.org] Wednesday, April 18, 2001 10:59 AM Bonnie Lesley; Brady Gadberry; Junious Babbs; Linda Austin; Marian G. Lacey; Sadie Mitchell Words to encourage us Thought you might enjoy this today as a way to jumpstart the afternoon when things seem impossible. Paulette LESLEY, BONNIE From: BRIGGS, MONA R. Sent: To: Wednesday, April 18, 200110:10 AM LESLEY, BONNIE Subject: Cost of Tools for Learning (Fred Jones); Parent Component Importance: High The discounted costs of books is: 500 books @ $18.00 (regularly priced at 29.95) 300-499@ $18.50  0-299@ $18.95 0-199@ $19.95 Shipping for 500 is $546.75; it may be slightly less for fewer numbers but not significantly. RE: Parent involvement with training 709 GADBERRY, BRADY L. -From: Sent: To: Subject: LEASE, KATHY R. Tuesday, November 28, 2000 4:31 PM BABBS, JUNIOUS; FRANCES CAWTHON; Gadberry, Brady L.; Hurley, Richard; LESLEY, BONNIE; Leslie Carnine; LINDA WATSON; MARIAN LACEY; Milhollen, Mark; Sadie Mitchell; STEWART, DONALD M.; Vann, Suellen Steve Ross-Program Evaluation.ppt Steve Ross-Program Evaluation-.. FYI--Here is a copy of Steve's presentation to the Board. KL GADBERRY, BRADY L. From: LEASE, KATHY R. Sent: To: Thursday, November 16, 2000 8:32 AM GADBERRY, BRADY L. Subject: RE: PRE List Requested - ~hared with Babbs that I thought we could provide some assistance in PRE to make the surveying process a little easier.  eve got the equipment and the software! I just talked with Gene Jones to confirm his schedule, and he said that he was invited to the compliance meeting tomorrow morning. I told him, \"Great! See you then!\" KL ---Original Message- From: GADBERRY, BRADY L. Sent: Thursday, November 16, 2000 8: 17 AM To: BABBS. JUNIOUS Cc: LEASE, KATHY R. Subject: RE: PRE List Requested We were told early in the year by Dr. Carnine that all surveys would be done through PRE. ----Original Message----- F rom: BABBS, JUNIOUS Sent: Tuesday, November 14, 2000 7:15 PM To : GADBERRY, BRADY L. Cc: LEASE, KATHY R. Subject: FW: PRE List Requested To my knowledge Vic and I both allowed department \"Quality of Service Surveys\" that went to appropriate building staff to be returned and worked through our own division shops. What is your thinking to continue with this format or consideration through PRE ? Junious C. Babbs, Jr jcbabbs@stuasn.lrsd.kl2.ar.us little Rock School District - Original Message- From: L~SE, KATHY R. Sent: Friday, November 10, 2000 12:18AM To: 'Clay Fendley'; LESLEY, BONNIE; BABBS, JUNIOUS; MITCHELL. SADIE; GADBERRY, BRADY L.; STEWART, DONALD M. Cc: CARNINE, LESLIE V. Subject: List Requested Dear Folks, Attached is the list of programs or strategies that have either received some evaluation services or have requested evaluaiion services. If you need additional information, please let me know. 15 Thanks, Kathy - \u0026lt;\u0026lt; File: Addition2I Programs and Strategies Requesting Evaluation.doc GADBERRY, BRADY L. From: Sent:  To: Subject: logo memo.doc LEASE, KATHY R. Friday, October 27, 2000 2:52 PM MITCHELL, SADIE; LESLEY, BONNIE; BABBS, JUNIOUS; GADBERRY, BRADY L.; STEWART, DONALD M. Memo to Gene Jones Here is what I am having Irma send on Monday. If you see anything that needs to be changed, let her know ASAP. KL GADBERRY, BRADY L. From: LEASE, KA THY R. Sent: Wednesday, October 25, 2000 8:37 PM To: CARNINE, LESLIE V.; MITCHELL, SADIE; BABBS, JUNIOUS; GADBERRY, BRADY L. Subject: FW: Benchmark Scores - ear Folks. If Bonnie wants to continua lly harass me that is one thing , but I would appreciate it if she didn't pick on my assistant. Please read the exchanges below. She also left Irma a voice message that was very curt. Irma h2s been working like a dog in room 16 to finish up the answer documents for the CRTs, so she wasn't immediately available to read email or answer the telephone. No one came down here looking for her, so she didn't know that there was an urgent message. I emailed a reply message to Bonnie and sent you all a blind copy; so I'm sure I'll be in trouble again. However, there has to be an end to this. We are working as hard as we can to produce these test reports, implement the assessment program, and produce program evaluations. I don't know how much more I can stand. She also continues to work behind my back through Eddie McCoy. This is ridiculous!! Who could be successful in such an environment? I'm sorry for ranting, but I am exhausted mentally, physically, and emotionally. Kathy -Original Message- From: TRUETT, IRMA Sent: Wednesday, October 25. 2000 8:21 PM To: LEASE. KATHY R. Subject: FW: Benchmark Sccres -Original Message- From: LESLEY, BONNIE Sent: Wednesday, October 25, 2000 5:05 PM To: TRUETT, IRMA Subject: RE: Benchmark Sccres I'm sorry, Irma, but I can't accept that response. -Original Message- From: TRUETT, IRMA Sent: Wednesday, October 25, 2000 2:08 PM To: LESLEY, BONNIE Subject: RE: Benchmark Sccres Sorry, I'm just now getting your e-mail, but I've been working in room 16. I don't have this information and frorn what I underst2nd Dr. Lease has it with her to give to the principals this afternoon. Sorry! - Original Message- 16 From: L::SLEY, BONNIE Sent: Wednesday, October 25, 2000 9:44 AM To: TRUETT, IRMA Subject: Benchmark Scores I need copies of the state test results by school in my office asap. Board members and others are calling for information. Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 S. Pulaski Little Rock, Arkansas 72206 501/324-2131 501/324-0567 (fax) GADBERRY, BRADY L. From: Sent: To: Subject: Bonnie, LEASE, KATHY R. Wednesday, October 25, 2000 8:17 PM LESLEY, BONNIE Benchmark Scores Irma forwarded your messages to her about the test scores. As I told you when we met with Suellen, I would have your curriculum copies ready by Friday. They are ready now. After learning that you were insistent on having the scores immediately, I stayed late tonight and finished them up. Irma came back down here from home to help me. I am just waiting on your initials on the memos. I will bring them to the Institute tomorrow. Irma can come pick them up and make copies. I understood Dr. Carnine to say that the Board reports could be sent in the Friday report. I had them ready at the Board meeting, but he didn't want them distributed until we had more time to confirm the data. Since you  ave asked for them, I printed what we have at this time in draft copy. I will give the copies to you that are printed for the oard. If you think they need to be sent by special courier rather than in the Friday report, that will be your choice. I was nly trying to follow the directions I was given. If you needed the scores so quickly, why didn't you call me out of the meeting today? Irma didn't even know where we had secured the copies of the reports. It was very unfair of you to keep harassing her and making her feel badly because she couldn't produce the reports instantly for you. If you need something, please do me the courtesy of asking me for it. I understood that the Friday timeline was satisfactory with you. If it wasn't, you should have let me know. Kathy Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc.lrsd.k12.ar.us 17 Subject: RE: This has been the week from hell. I hear that Walker may call Kathy to testify. Of course, that may not be good for the district. We'll see. I'm so tired I could fall on my face. Sooooooo glad it's Friday! -Original Message- From: BRIGGS, MONA R. Sent: Thursday, June 28, 2001 8:00 PM To: LESLEY, BONNIE Subject: RE: Bonnie, I hate all this, don't you? I guess you will have your \"day in court.\" Too bad Kathy didn't get in on it ... I understand from Eddie that she took all her files with her. What a deal. Surely, the judge will see through this and let us get on with our lives. Walker just doesn't want to give up those big bucks he makes off of us. Hope you have some down time somewhere along the line. Mona R. Brig~ N1iadI~ [~~~I Specialist Little Rock School District 501-324-2412 \"Seek First to Undersfal7d; then to be understood\" (Covey) -----Original Message----F rom: LESLEY, BONNIE Sent: Thursday, June 28, 2001 9:08 AM To: CHAPMAN, SUSAN; GLENN, RANDALL; WATSON, LINDA; ELSTON, JO; WIEDOWER, JULIE; EGGLESTON, DEANA; ADAMS, LEON; ARNOLD, LAURA BETH; AUSTIN, LINDA; BRANDON, BARBARA; BRIGGS, MONA R.; BROADNAX, KAREN; BUSBEA, PAT; CARR, MARCELLINE; CARSON, RENE'; CLEAVER, VANESSA;  CLIFFORD, ELIZABETH; CRAWFORD, PAMELA; DAVIS, SUZI; DEBBIE MILAM; DILLINGHAM, YVETTE; DONALDSON, MABLE; FI!\\JNEY, ANTONETTE; FLETCHER, DANNY; FREEMAN, A~~N; GILLIAM, ANITA; GLASGOW, DENNIS; HARDING, CASSAt\\JDRA; HUFFMAN, KRIS; JACKSON, MARION; JOHNSON, VIRGINIA; JONES, DOCIA; JONES, STEPHANIE;_ l92 Subject: RE: This has been the week from hell. I hear that Walker may call Kathy to testify. Of course, that may not be good for the district. We'll see. I'm so tired I could fall on my face. Sooooooo glad it's Friday! -Original Message- Frorn: BRIGGS, MONA R. Sent: Thursday, June 28, 2001 8:00 PM To: LESLEY, BONNIE Subject: RE: Bonnie, I hate all this, don't you? I guess you will have your \"day in court.\" Too bad Kathy didn't get in on it ... I understand from Eddie that she took ell her files with her. What a deal. Surely, the judge will see through this and let us get on with our lives. Walker just doesn't want to give up those big bucks he makes off of us. Hope you have some down time somewhere along the line. Mona R. Brig~ Mia-a,~ [~~~I Specialist Little Rock School District 501-324-2412 \"Seek First to Understand; then to be understood\" (Covey) -----Original Message----From: LESLEY, BONNIE Sent: Thursday, June 28, 2001 9:08 AM To: CHAPMAN, SUSAN; GLENN, RANDALL; WATSON, LINDA; ELSTON, JO; WIEDOWER, JULIE; EGGLESTON, DEANA; ADAMS, LEON; ARNOLD, LAURA BETH; AUSTIN, LINDA; BRANDON, BARBARA; BRIGGS, MONA R.; BROADNAX, KAREN; BUSBEA, PAT; CARR, MARCELLINE; CARSON, RENE'; CLEAVER, VANESSA;  CLIFFORD, ELIZABETH; CRAWFORD, PAMELA; DAVIS, SUZI; DEBBIE MILAM; DILLINGHAM, YVETTE; DONALDSON, MABLE; FINNEY, ANTONETTE; FLETCHER, DANNY; FREEMAN, ANN: GILLIAM, ANITA; GLASGOW, DENNIS; HARDING, CASSAt'\\JDRA; HUFFMAN, KRIS; JACKSON, MARION; JOHNSON, VIRGINIA; JONES, DOCIA; JONES, STEPHANIE; 192 LESLEY, BONNIE From: Sent: To: Subject: ?57 KIILSGAARD, SHARON; KILLINGSWORTH, PATRICIA; KOVACH, RENEE: LAJUANA RAINEY; LOYA, STELLA; MARION BALDWIN; MARTIN, PAULETTE; McCOY, EDDIE; McNEAL, MARIE; MILAM, JUDY; NEAL, LUCY; PAAL, MARY M.; PAUL, ANNITA; PERRITT, YORIKO U.; PRICE, PATRICIA; RYNDERS, PAULA; SMITH, GARY; SMITH, PAULA; TEETER, JUDY; WALLS, COLLEEN; WARD, LIONEL; WILLIAMS, BARBARA; WILLIAMS, ED; WILSON, LEVANNA; WOODS, MARION Cc: 'heller@fec.net' Subject: I just spoke with Chris Heller, our attorney. He asked me to reiterate to everyone that he does not want any of the staff talking with Mr. Walker about anything-to refer all his calls, faxes, and visits to Mr. Heller. And he asks that we absolutely not send to Mr. Walker anything without clearing it with him first. Finally, he asks that we remind all our staff once more about this! He was adamant. Please make sure the staff not named in th is e-mail also understand this directive. Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 S. Pulaski Little Rock, Arkansas 72206 501/3 24-2131 501/324-0567 (fax) LESLEY, BONNIE Friday, June 29, 2001 2:47 PM ADAMS, LEON; ARNOLD, LAURA BETH; AUSTIN , LINDA; BRANDON, BARBARA; BRIGGS, MONA R.; BROADNAX, KAREN; BUSBEA, PAT; CARR, MARCELLINE; CARSON, RENE'; CLEAVER, VANESSA; CLIFFORD, ELIZABETH; CRAWFORD, PAMELA; DAVIS, SUZI; DEBBIE MILAM; DILLINGHAM, YVETTE; DONALDSON, MABLE; FINNEY, ANTONETTE; FLETCHER, DANNY; FREEMAN, ANN; GILLIAM, ANITA; GLASGOW, DENNIS; HARDING, CASSANDRA; HUFFMAN, KRIS; JACKSON, MARION; JOHNSON, VIRGINIA; JONES, OOCIA; JONES, STEPHANIE; KIILSGAARO, SHARON; KILLINGSWORTH, PATRICIA; KOVACH, RENEE; LAJUANA RAINEY; LOYA, STELLA; MARION BALDWIN; MARTIN, PAULETTE; McCOY, EDDIE; McNEAL, MARIE; MILAM, JUDY; NEAL, LUCY; PAAL, MARY M. ; PAUL, ANNITA; PERRITT, YORIKO U.; PRICE, PATRICIA; RYNDERS, PAULA; SMITH, GARY; SMITH, PAULA; TEETER, JUDY; WALLS, COLLEEN; WARD, LIONEL; WILLIAMS, BARBARA; WILLIAMS, ED; WILSON, LEVANNA; WOODS, MARION; BABBS, JUNIOUS; FRANCES CAWTHON; GADBERRY, BRADY L. ; HURLEY, RICHARD; JAMES, KENNETH; LINDA WATSON; MARIAN LACEY; MILHOLLEN, MARK; Sadie Mitchell; STEWART, DONALD M.; VANN, SUELLEN; WATSON, LINDA; ANDERSON, BARBARA; ASHLEY, VIRGINIA; BRANCH, SAMUEL; BROOKS, SHARON; CARSON, CHERYL; CARTER, LILLIE; COURTNEY, THERESA; COX, ELEANOR; DARIAN SMITH; DEBORAH MITCHELL; ETHEL DUNBAR; Faith Donovan; FIELDS, FREDERICK; GOLSTON, MARY; HALL, DONNA; HARKEY, JANE; HOBBS, FELICIA L; JONES, BEVERLY; KEOWN, ADA; Lillie Scull; MANGAN, ANN; MANNO, ROBERTA; MARY BARKSDALE; MENKING, MARY; MORGAN, SCOTT; NANCY ACRE; OLIVER, MICHAEL; PHILLIPS, TABITHA; SHARON BROOKS; SMITH, MARY; TAYLOR, LESLIE; TUCKER, JANIS A.; WILSON, JANICE M. ; WORM, JERRY; ZEIGLER, GWEN S.; BERRY, DEBORAH; BLAYLOCK, ANN; FULLERTON, JAMES; HUDSON, ELOUISE; Larry Buck; MOSBY, JIMMY; PATTERSON, DAVID; ROUSSEAU, NANCY; SAIN, LLOYD ORA Results by Middle School Feeder Pattern 193 the AL Ts, and so they were down there yesterday and again today just kind of picking it up, but they do not necessarily know what they are supposed to be doing. They need direction, and I don't feel that I should provide it. - ow do you want to handle this? LESLEY, BONNIE From: LEASE, KA THY R. Sent: To: Monday, October 02, 2000 6:48 PM CARNINE, LESLIE V. Subject: FW: Priorities 2000-2001 Dr. C., I'm sorry. I guess I don't quite know what to do with the plan I sent to Bonnie. I guess I missed the mark. I thought we were to develop what we were doing in our department to meet the areas you outlined in your critical priorities processes. Do you want me to send the parts to the people Bonnie mentioned below? Or are you going to put it all together using what you want out of what we sent? Let me know what you want me to do. KL -Original Message- From: LESLEY, BONNIE Sent: Friday, September 29, 2000 3:04 PM To: LEASE, KATHY R. Subject: RE: Priorities 2000-2001 You need to send the technology stuff to Lucy Neal. You need to send the Campus Leadership stuff to Sadie Mitchell. I suggest that you forward the other two pieces directly to Dr. Carnine. They are much more detailed than the other items in the Division of Instruction Work Plan and therefore don't \"fit\" with what we have. Alsp; I know nothing about the Quality Initiative Plan, so that makes no sense. to.roe0 Perhaps he can just include your items separately.     -- -  -  -0-riginal Message- From: LEASE, KATHY R. Sent: Friday, September 29, 2000 2:50 PM To: LESLEY, BONNIE Subject: Priorities 2000-2001 Importance: High I had massive computer failures today. It took Ed, Ken, Virginia, and Irma to help me get it all back. Here are the priorities from PRE. Call me, if you want me to go over them with you. Thanks, Kathy \u0026lt;\u0026lt; File: Priority II Technology 2000-2001 .doc   File: Priority 11I-2000.doc   File: Priority IV InstructionAssessment. doc   File: Priority IV Instruction-evaluation.doc \u0026gt;\u0026gt; Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc.lrsd .k12.ar.us 51 sounds like the our data is available. - ESLEY, BONNIE From: Sent: To: Subject: Dr. C., LEASE, KA THY R. Tuesday, October 03, 2000 6:09 PM CARNINE, LESLIE V. CTA issues 75.1 Did Clementine come in today to discuss assessment issues with you? I invited her in last spring to talk with me, but she never came. If she has some specific issues that you think we need to address in the questionnaire, let me know. I started drafting some ideas about questions, but I think I need some input from you. It looks like from one of the emails you sent that folks have been communicating with you about their concerns. They may have shared some things we haven't thought about. Let me know if you have any time tomorrow afternoon to visit with me (phone or in person) about the survey. Thanks, Kathy Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc.lrsd.kl 2.ar.us LESLEY, BONNIE a rorn: LEASE, KA THY R.  ent: To: Tuesday, October 03, 2000 5:45 PM CARNINE, LESLIE V. Subject: RE: ALT Check-In, Etc. This is pure fabrication . This is not the situation here in PRE. We have a fox in the hen house. I thought this kind of thing was supposed to be over. The digs have continued. The ALT process has to have someone who shepherds it. I said originally that I would need Gayle at least six weeks to two months. I fully understand the strain that Sadie is under because she has come to depend on Gayle as well. If Gayle cannot fulfill her commitment with ALT, then I think she would let me know. She had to go over to the administration building to get some work done to be ready for the Bi-Racial committee report that she is scheduled to give tonight. Roz told her that she could take care of anyone who checked in things today. I guess the real question is that if my staff thinks they are having a problem \"handling\" the ALT today, why didn't they contact me? We had Ed here scanning and scoring, and Irma received no calls that she couldn't handle. I'm afraid I am left with no other conclusion but that this is continued harassment by the person that I thought had agreed to quit harassing. Can you help me with any other explanation? KL -Original Message- From: CARNINE, LESLIE V. Sent: Tuesday, October 03, 2000 11 :10 AM To: LEASE, KATHY R. Cc: Mijchell, Sadie Subject: FW: ALT Check-In, Etc. I know you know how assumptions can get you in trouble. Obviously, there appears to be a communication problem and I would hope you and Sadie could work it out. -Original Message- Arom: LESL!::Y, BONNIE wrent: Tuesday, October 03. 2000 10:55 AM To: CARNINE, LESLIE V. Subject: ALT Check-In, Etc. I have had three complaints already today-two from IRC staff and one from building-level. Gayle has returned to downtown, and Kathy is sitting in the school improvement meetings. Neither of them organized the staff for the return cif so 76D - LESLEY, BONNIE From: Sent: To: Subject: Thanks, Bev. -Original Message- LESLEY, BONNIE Wednesday, June 20, 2001 1:13 PM GRIFFIN, BEVERLY RE Semester Test Exemption From: .GRIFFIN, BEVERLY Sent: Wednesday, June 20, 2001 1:15 PM To: LESLEY, BONNIE Subject: RE: Semester Test Exemption i gave a copy of th~ minutes from the February Board meeting to Mr:3. Lacey earlier this week. I don't think I have;--, copy of the kids proposal, but I will check. l was under the impression that this action was for this years seniors only. I might be wrong . . . but, it might be worth checking with Board members to see if they intended for it to be a permanent change to the policy. I will fax you the minutes in just a minute. -Original Message- From: LESLEY, BONNIE , Sent: Wednesday, June 20, 2001 12:51 PM To: GRIFFIN, BEVERLY Subject: Semester Test Exemption Bev, there is wide disagreement about what people remember as the motion the board made regarding the exemption of seniors from their spring semester tests. I don't remember the month they did that-probably February or March? Will you send to me the text of the motion, as well as the text of the language used by the kids in their proposal. I don't have that and will need it to update those regulations/policies. Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 S. Pulaski Little Rock, .Arkansas 72206 501/324~2131 501/324-0567 (fax) LESLEY, BONNIE From: Sent: To: Subject: LESLEY, BONNIE Wednesday, June 20, 2001 1 :12 PM TRUETT, IRMA Compliance i - - --- ~ The compliance report lists several \"program evaluations\" that PRE reported that they had completed, but which I have never seen. Please provide me with three copies each of the following reports. They have been requested by Mr. Walker. '  Extended Year Schools Summer School HIPPY Program  parter Scho0I W'.ampus Leadership Teams Engiish as a Second Language , Lyceum Scholars Program at Philander Smith Colleae Southwest Middle School's SEDL Program - Onward to Excellence (Watson Elementary) Collaborative Action Team (CAT) 351 - LESLEY, BONNIE From: Sent: To: Subject: LESLEY, BONNIE Monday, June 25, 2001 12:37 PM 'Clay Fendley'; 'heller@fec.net' RE: Meeting schedule Yea! Thanks you! I can't tell you how important this is! 76/ I just talked with Ann Brown. She wanted all the test scores. I put her off until the end of the week. We need to talk about what to give her. -Original Message- From: Clay Fendley [SMTP:FENDLEY@fec.net] Sent: Monday, June 25, 2001 12:42 PM To: BALESLE@IRC.LRSD.K12.AR.US Cc: Chris Heller Subject: RE: Meeting schedule Leaving at 1 :05 on the 6th is fine. We will tell Walker that if he wants to call you as a witness, he will need to call you on the 5th. Thanks. \u0026gt; \"LESLEY, BONNIE\" \u0026lt;BALESLE@IRC.LRSD.K12.AR.US\u0026gt; 06/25/0111:49AM \u0026gt; I just called the airlines. I would need to catch a plane at 1 :05 on the 6th to get to Amarillo in time for the rehearsal dinner for this big wedding. If I can't do that, then the latest I could leave to get there at all on Friday is at.5:35 Then I would-come. home on Sunday. What do you advise? \u0026gt; -Original Message- \u0026gt; From: Clay Fendley [SMTP:FENDLEY@fec.net] \u0026gt; Sent: Monday, June 25, 2001 9:41 AM \u0026gt; To: BALESLE@IRC.LRSD.K12.AR.US; blgadbe@lrsdadm.lrsd.k12.ar.us; \u0026gt; DMSTEWA@lrsdadm.lrsd.k12.ar.us; lvcami@lrsdadm.lrsd.k12.ar.us; \u0026gt; SMMitch@lrsdadm.lrsd.k12.ar.us; JCBABBS@STUASN.LRSD.K12.AR.US \u0026gt; Cc: Chris Heller; KJAMES@lrsdadm.lrsd.k12.ar.us \u0026gt; Subject: Meeting schedule \u0026gt; \u0026gt; Here's the meeting schedule so far: \u0026gt; \u0026gt; Mr. Gadberry - Wednesday at 2:00 at our office. \u0026gt; Dr. Lesley - Thursday at 1 :DO at our office. \u0026gt; Ms. Mitchell - Friday at 9:00 at our office. \u0026gt; \u0026gt; We should get Joshua's objections today and have requested a witness list \u0026gt; by Wednesday. \u0026gt; \u0026gt;Weare leaving Monday (July 2) open until we get Joshua's witness list. \u0026gt; Everybody plan on meeting Tuesday (July 3) all day at our office. Let me \u0026gt; know if that presents a problem for you, and we can try to work around \u0026gt; your schedu_le. \u0026gt; \u0026gt; Remember, the most important thing in preparation for the hearing is for \u0026gt; you to know what's in the Revised Plan and the interim and final \u0026gt; compliance reports. \u0026gt; \u0026gt; We will provide copies of Joshua's objections as soon as they are \u0026gt; received. \u0026gt; \u0026gt; Let me know if you have any questions. \u0026gt; selected to receive Merit Scholarship awards. The info in italics is from the National Merit web site. So, of the 1.2 million entrants, only 7,900 are named Finalists for National Merit scholarships and corporate-sponsored scholarships. That amounts to 6/10 of 1 % of the entrants. Mr. Walker's statement on page 22 is: \"We note here that the district is yet to have a single Black national merit scholar in the nineteen years of this active litigation.\" THIS IS INCORRECT. Without reviewing 19 years of data (and we don't have al(b:f the data for those years), as recently as 4 years ago Salonica Gray, an A.fiican American female senior at Central, was a National Merit Finalist. Hope this helps! Suellen 5. Vann, APR Director of Communications Little Rock School District (501) 324-2020 LESLEY, BONNIE From: LESLEY, BONNIE Sent: Thursday, June 28, 200111 :36 AM To: MITCHELL, SADIE Subject: RE: ~ am wondering how he is feeling as well. This is baptism by fire. -Original Message- From:  MITCHELL. SADIE Sent: Thursday, June 28, 2001 9:29 AM To: LESLEY, BONNIE Subject RE: I panicked when I got here and saw all of the stuff from John. I am worried about Dr. James. I hope he will be able to handle all of this. Sadie Mitchell smmitch@lrsdadm.lrsd.k12.ar.us -Original MessageFrom: LESLEY, BONNIE Sent: Thursday, June 28, 2001 9:09 AM To: MITCHELL, SADIE Subject: RE: He was kind of angry that we are even attempting to respond to this stuff. He asked me what he needed to do to make sure everyone understands that we are not to play Mr. Walker's game. How ya doing today? -Original Message- From: MITCHEU, SADIE Sent: Thursday, June 28, 2001 9:18 AM To: LESLEY, BONNIE Subject: RE: :) Sadie Mitchell smmitch@lrsdadm.lrsd.k12.ar.us - __1!_8_ ------ - - --- - ------ --- - - -Original Message- From: LESLEY, BONNIE Sent: Thursday, June 28, 2001 9:04 AM To: MITCHELL, SADIE; EGGLESTON, DEANA; GADBERRY, B~DY L.; STEWART, DONALD M.; BABBS, JUNIOUS; JAMES, KENNETH Cc: 'heller@fec.net' Subject: RE: I just spoke with Chris Heller, and he asked me to tell all of you that we are not going to make this information (copies of our invitations and documents sent to Mr.Walker or Ms. Springer) available to Mr. Walker. It is without exception stuff we have already sent to him:\"- He also asked me to reiterate to everyone that he does not want any of the staff talking with Mr. Walker about anything-to refer all his calls, faxes, and visits to Mr. Heller. And he asks that we absolutely not send to Mr. Walker anything without clearing it with him first. Finally, he asks that we remind all our staff once more about this! He was adamant. -Original Message- From: MITCHELL, SADIE Sent: Thursday, June 28, 2001 9:03 AM To: EGGLESTON, DEANA Cc: LESLEY, BONNIE; GADBERRY, BRADY L.; STEWART, DONALD M.; BABBS, JUNIOUS Subject: RE: Thank you Sadie Mitchell smmitch@lrsdadm.lrsd.kl2.ar.us -Original Message- From: EGGLESTON, DEANA Sent: Thursday, June 28, 2001 8:38 AM To: MITCHELL, SADIE Cc: BABBS, JUNIOUS Subject: RE: Everyone sent the information when it was requested, however, I'm not sure if they have sent recent documents since his original request. I just spoke with Cly and he said to make the folders we have available to Joy on Monday as per \"her request, but for me to not to put the documents in any particular order (ie. date, subject, etc.) -  - ------  - .. ~.. . -- --- ---- .. -- - . ___ .. Deana -Original Message- From: MITCHELL, SADIE Sent: Thursday, June 28, 2001 8:41 AM To: LESLEY, BONNIE; STEWART, DONALD M.; GADBERRY, BRADY L.; BABBS, JUNIOUS; JAMES, KENNETH   Cc: EGGLESTON, DEANA Subject: Mr. Walker sent a fax requesting \"all invitations to Ms. Springer or Mr. Walker to meetings of any kind, as well as copies of any documents you have sent to them over the past three years. Also any document of whether Mr. Walker or Ms. Springer actually attended the meetings to which you invited them.\" I think we already sent this information to Mr. Babbs and he compiled it. Is this correct? Sadie Mitchell smmitch@lrsdadm.lrsd.kl2.ar.us 219 - - LESLEY, BONNIE From: LEASE, KATHY R. Sent: To: Tuesday, February 13, 2001 12:54 PM CARNINE, LESLIE V. Subject: FW: Test Pack Importance: High Dr. Carnine, What is the purpose of this? Am I missing something? Is Bonnie trying to eliminate her need to work with this department? We have some software that is licensed to this department. Eddie has been trying to get it loaded on her computer. My guess is that she needs it to work on her dissertation. She has not spoken to me about what her data needs are for her dissertation. Most doctoral candidates come in and visit with us about their data needs. We work with them, but they get data in an aggregate form, not individual students' information. I wish you would please tell me what role you want this department to play. I know the game that is being played. I am about to my wit's end with it. Kathy -Original Message--- From: JOHNSON, VIRGINIA Sent Tuesday, February 13, 200112:43 PM To: LEASE, KATHY R. Subject: FW: Test Pack -Original Message-  om: LESLEY, BONNIE nt; Monday, February 12, 2001 5:31 PM , o: RUFFINS, JOHN Cc: JOHNSON, VIRGINIA; McCOY, EDDIE; CLEAVER, VANESSA Subject RE: Test Pack Thanks so much, JOhn. -Original Message- From: RUFFINS, JOHN Sent; Monday, February 12, 2001 4:46 PM To: LESLEY, BONNIE Subject: RE: Test Pack I will come over and personally visit with Virginia and Eddie to access their data and program needs. -- -Original Message--From: LESLEY, BONNIE Sent Monday, February 12, 2001 2:40 PM To: RUFFINS, JOHN Subject Test Pack John, I am moving Eddie McCoy and Virginia Johnson out of the rooms designated for PRE and into the room where Vanessa Cleaver is. Both of them will have some program evaluation responsibilities and need to be able to access the SAT9 data, as well as other student data. How do I get those programs loaded onto their machines? Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 S. Pulaski Little Rock, Arkansas 72206 501/324-2131 501/324-0567 (fax) 19 ' LESLEY, BONNIE From: LEASE, KA THY R. Sent: To: Tuesday, February 13, 2001 5:36 PM CARNINE, LESLIE V. Subject: RE: Another thought Here's one more thought, then I'm burying this frustration. I wouldn't have knowt'i\" about what she is doing at all if Virginia hadn't forwarded me a copy of the message. I'm trapped in junior high!!! Can't somebody save me??? Kathy -Original Message-- From: CARNINE, LESLIE V. Sent: Tuesday, February 13, 2001 4:05 PM To: LEASE, KATHY R. Subject: RE: Another thought I can support but you do not want to hold the data ... You want free access. Give her all the access she wants or needs ... and then give her more. -Original Message- From: LEASE, KATHY R. Sent: Tuesday, February 13, 2001 12:56 PM To: CARNINE, LESLIE V. Subject: Another thought Is it possible to require Bonnie to work through me to get the data she needs? .She is doing everything possible to undermine the work of this department. I have never seen such viciousness in all my professional experience. Can yo1:1 s1:1ppo1Tusor are weTon our own? Kathy Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 5. Pulaski Little Rock, AR 72206 LESLEY, BONNIE From: LEASE, KATHY R. 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc. lrsd .k12.ar. us Sent: To: Tuesday, February 13, 2001 4:10 PM CARNINE, LESLIE V. Subject: RE: Another thought I totally agree with that. I want everyone to have access to the data at his or her fingertips. I just continue to be frustrated with the way she refuses to work with me. Kathy -- -Original Message--- From: CARNINE, LESUE V. Sent: Tuesday, February 13, 2001 4:05 PM To: LEASE, KATHY R. Subject: RE: Another thought \u0026amp; can support but you do not want to hold the data ... You want free access. Give her all the access she wants or needs ...  nd then give her more. --Original Message- From: LEASE, KATHY R. Sent: Tuesday, February 13, 2001 12:56 PM To: CARNINE, LESLIE V. Subject: Another thought 17 Is it possible to require Bonnie to work through me to get the data she needs? She is doing everything possible to undermine the work of this department. I have never seen such viciousness in all my professional experience. Can you support us or are we on our own? Kathy Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 LESLEY, BONNIE 501 -324-2122 (VM) 501-324-2126 (Fax) krlease@irc.lrsd.k12.ar.us From: LEASE, KA THY R. Sent: To: Subject Tuesday, February 13, 2001 12:59 PM CARNINE, LESLIE V. Positions After Don's comment in Cabinet about not hiring people, I visited with him about the positions that I currently have advertised. He suggested that I visit with you about whether or not I can hire the people I need to do the assessment program. I am currently down to three employees. I don't think we can do assessment for 20,000 kids with that number. want to set up interviews this week, but I want your blessing! -- Thanks, Kathy Kathy Lease, Ed.D. a,-ssistant Superintendent 9'lanning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 LESLEY, BONNIE 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc.lrsd. k 12 .ar. us From: LEASE, KA THY R. Sent: To: Subject: Tuesday, February 13, 2001 12:56 PM CARNINE, LESLIE V. Another thought Is it possible to require Bonnie to work through me to get the data she needs? She is doing everything possible to undermine the work of this department. I have never seen such viciousness in all my professional experience. Can you support us or are we on our own? Kathy Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc. lrsd. kl 2.ar. us 18 From: To: Date: Dr. Faucette i'r/-}- Mrs. Hargis 17 November 2000 ....'  Subject: Exclusion of regular English students from Jennie Calder lecture I write to request a bit of information concerning the recent visit of Jennie Calder, a Robert Louis Stevenson scholar from Scotland, to Central as a part of the conference celebrating this great writer. It was my understanding, after our conversations last spring, that the event was in recognition of the universal appeal of a revered writer. Known and loved the world over, Stevenson is one of a -select group whose works attract readers from widely varying backgrounds, uniting people of all classes and condition in the appreciation of a gifted artist. I was excited about the opportunity Central students-including my own studentswould have to be--exposed to a world of exciting and enthusiastic research that would be especially significant for seniors. (Traditionally, the last year of high school English is dedicated to the exploration of the rich legacy of British literature.) I was disappointed  beyond belief to learn that none-not one--of my regular Engli~h students would be allowed to oenefit from tlie singular experience of having the chance to see and hear the visiting scholar. Only AP and pre-AP students were allowed to attend the Piesentation. In fact, most teachers of regular English classes only learned of the event when students began to ask why they were not allowed to attend the assembly that students in other classes were discussing at lunch. Limiting the experience to students in AP and pre-AP English classes meant that very few black students were allowed to attend. I am shocked and outraged that yet another singular educational opportunity has been reserved for the children of privilege. Because many of the privileged AP English students took advantage of the event to slip out of the building and skip the assembly, and because you wanted to supplement their numbers, you solicited the attendance of students from AP. science and history classes,   still denying access to students from regular English classes. If you really wanted to  impress Ms. Calder, having the Creative Writing Club presented would have done just  that. The knowledge that, at 287 members, the Creative Writing Club is the most active club at Central would impress any true scholar or teacher. One can only wonder why you, Mr. Howard, and the third floor English department all miss the significance of the fact that the club that most fully represents the student diversity in our building is a club centered around an academic endeavor, the study and practice of literature. Yes, this is quite an example you set for our students. Central, lvir. Howard, the English department, and you all had a chance to shine as this scholar brou~bt her enthusiasm to our large and diverse student body. Central, Mr. Howard, the English department, and you dropped the ball disastrously on this one. Rather than seizing the opportunity to be shining beacons by providing this opportunity 7tS I  I I   l ; . ~   .. for learning outside the traditional limitations of the classroom to all of our students, you have shown your true stripe. I thank you for the demonstration once again that, instead of a single unified English department, Central actually bas two:.the second floor contrining primarily regular English classes, and the privileged third-.floor home of AP English. I would now ask an additional bit of information. Please inform me in writing of your reasons for this -l~test instance of educational snobbery so that I might explain more accurately to my classes your dismissal of them as second-class students. - ....._ - -  -  Dr. Leslie Carnine Superintendent of Schools Little Rock School District 810 West Markham Little Rock, AR 72201 Dear Dr. Carnine: Via Facsimile - 324-2146 December 16, 1998 Would you please ask Nir. James Washington, the District's ombudperson, to look into the complaint of Mr. \u0026amp; Mrs. Deodis Fleming regarding their concerns at Carver Magnet. You are probably not aware that this office has had.several complaints from other parents regarding the unfair treatment of black students at Carver. You should have received a letter from the Flemingsoutlining their concerns along with a response from Ms. Barksdale. Copies ofboth are enclosed for your convenience. . The Flemings believe that Ms. Barksdale is trying to excuse the reason for Ms. Ransom's exclusion of their son from participation by stating that he had behavior problems. In today's society, persons who discriminate usually attempt to establish legitimate reasons for their discriminatory actions. The reason given by Ms. Ransom, we believe, is pretextual. In other words, the reason that she has given is not legitimate. The Flemings were not previously advised that their son had behavior problems regarding his participation in Odyssey of the Mind. Moreover, they are not aware that their son has a behavior problem. Ms. Barksdale's commitment to establish an OM Guideline booklet is a step, I believe, in the right direction. However, I do not believe that she should wait until next year. That process should start immediately. Opportunity for discrimination evolves when there are no written guidelines or rules for participation in a particular activity. The person overseeing or administering the activity usually has the discretion to make rules as they go along. These rules usually favor their own personal interests. Moreover, these rules or guidelines usually change daily to fit a particular interest or situation. I am not sure why the Flemings chose not assist in the coaching of Odyssey's students as indicated by Ms. Barksdale; however, many of our children's parents are unable to participate in many of the schools activities because often they occur-when they are obliged to work and other commitments to meet the overall needs of their families. Page 2 - Letter to Dr. Carnine December 17, 1998 167 I have indicated to Mr. \u0026amp; rvirs. Fleming that I woulq be happy to sit down with 1vir. Washington, Ms. Mitchell, Ms. Barksdale, and any other persons tl,1-?-t they believe can help bring this matter to an amicable resolution. In fact, Mr. Washington may assume the role as the parent advocate, if the Flemings agree. I would, however, like to receive a report of his findings and resolution. Thank you for your attention to this request. JCS/ Enclosures cc: Mr. \u0026amp; Mrs. Deodis Fleming Ms. Diane Barksdale Ms. Sadie Mitchell Mr. James Washington Sincerely, Joy C. Springer Joshua Intervenors Via Facsimile - 324-2146 February 18, 1999 Ms. Sadie Iv.litchell Associate Superintendent for Student Services Little Rock School District 810 West Markham Little Rock, AR 7220 l Dear Ms. Mitchell: This office has received several calls regarding the selection process for the new football coach at J. A Fair High School. It is our information that the selection process has been changed to favor the selection of a particular coach for the position. In oraer to address tfie concerns that have been raised, would you please provide to me a copy of process being utilized by District officials for the selection of coaching positions including the selection criteria. If this information has changed from prior years, also please provide the process and criteria that was utilized in previous years. I have spoken with Mr. Gillespie regarding this matter and he has assured me that the only change in the process was that the selection committee did not meet on the school campus as it has done in previous years. I was, however, a bit concerned about the gender makeup of the selection committee for the Fair position. I voiced my concern to Mr. Gillespie that the committee was all males. I am available to discuss this matter with you and Mr. Gillespie at a mutually convenient time. Thank you for your attention to this request. JCS/ cc: Ivir. Ray Gillespie Sincerely, Joy C. Springer Joshua Intervenors Rudolph Howard . Principal, Central High School 1400 Park Street Little Rock, AR 72202 Dear Mr. Howard: Via Facsimile - 324-2308 March 17, 1999 lb't I am writing on behalf of Rev. \u0026amp; Ms. Bennie Horton and their son, Tariclc, to request a conference regarding his grades. As I review the revised desegregation plan, I can point to a number of areas including equal treatment, participation in honors and gifted classes, academic achievement, parental involvement etc. that are involved in these parents' concern. By copy ofUiis letter to the District's Ombudsperson, :tvir. James L. Washington, I am also putting him on notice of this concern and invite him to participate in the conference. I have spoken with Ms. Horton and she is available during her lunch hour to discuss this matter. Please let me hear from you. JCS/ cc: Rev. \u0026amp; Mrs. Bennie Horton Mr. James L. Washington Sincerely, Joy C. Springer Joshua Intervenors JOHN W. WALKER RALPH WASHINGTON 2\\-1ARK BUR1'rETTE AUSTIN PORTER, JR. Mr. James Washington Little Rock School District Office of Ombudsman 810 West Markham Little Rock, AR 72201 Dear Mr. Washington: JOHN W. WALKER, P.A. ATIORNEY AT LAw 1723 BROADWAY L!ITLE ROCK, ARKANSAS 72206 'TELEPHONE(501) 374-3758 FA,'{ (501) 374-4187 Via Facsimile - 324-2213 October 14, 1999 KP./,puv1se AJ0. S 77{ /1)0, !1 I am writing to request that you look into the selection process for students participating on mock trial teams:at Central High School. We request that you obtain some background information regarding past composition by grade, race and gender and the current composition by grade, race and gender. This office has received a complaint that these teams are generally one race and favor . white students because their parents or other relatives are business professionals such as lawyers, judges, etc. Thank you for your attention to this matter. We further request a report of your findings with respect to this inquiry. By copy of this letter to Mr. Howard, :tv!r. Babbs and Dr. Carnine, I am also advising them of these allegations. JCS/ cc: Mr. Ruduloph Howard Mr. Junious Babbs Dr. Leslie Carnine a:rely,;'l - / ' cl::vKfl,/ / Joy C. Springer U .c::::1 On Behalf of Joshua 1vir. James Washington Ombudsperson Little Rock School District 810 West Markham Little Rock, AR 7220 I Dear Mr. Washington: Via Facsimile February 28, 2000 I am writing to request that you investigate the complaints of discrimination and retaliatory treatment by Mr. \u0026amp; Mrs. Eddy Harris Sr. against his son, Eddy Jr. by members of the staff at Oak Grove High School in the Pulaski County Special School District. For several years, Eddy Jr.w as a M to M student in tfie County. Eddy is currently a student in the Little Rock School District. I have previously requested that Mr. Billy Bowles, Assistant Superintendent for Desegregation, look into complaints of the Harrises. I am enclosing a CGpy of my request to .l\\!Ir. Bowles. Mr. Bowles assured me that he would conduct a thorough investigation and, thereafter, provide a report of his findings. I am enclosing a copy ofivir. Bowles' purported report of his findings. It is basically a one sentence conclusion. At least, I expected a report which enumerated all charges and a summary of his findings. I expected a more thorough report similar to the one that he and members of his staff conducted several years ago at Robinson High School where he noted findings, whether substantiated or unsubstantiated. The Harrises claim Eddy Harris Jr. was not allowed to participate on the football team for the last four or five games for.racial and/or retaliatory reasons, that Eddy Jr. was not selected to participate on the basket ball team for racial and/or retaliatory reasons and that Eddy Jr. re_ceived retaliatory treatment from his classroom teachers, in particular, Ms. Morrison, his English teacher. who gave him gave him an \"F\". The Harrises claim that Eddy's English grade for the semester is based, in part, upon assignments that he should not have been charged for because they had officially withdrew him from Pulaski County School District. Enclosed is the documentation from the Harrises. Also enclosed are copies of letters directed to or copied to Mr. Bowles regarding the claims of the Harrises. I also have several tape recordings of conferences with staff members that I will be happy to share with you. i\\lir. Bowles-was aware of these taped conferell(:es, but he-did not request a copy of either of them for his review. Mr. Bowles did not make single finding regarding his investigation nor did he address any of the points in this correspondence. In summary, the complaints of the Harrises are as follow: 1) failure of Eddy Jr. to participate in the remaining four or five games of the football season; 2) failure to Eddy Jr. to participate on the basketball team; and 3) the failing grade received by Eddy Jr. in English. 77/ The treatment referenced above, we believe is due to racial and/or retaliatory treatment by Pulaski County School District officials. Please let me know if additional information or clarification is needed regarding this matter. Again, I am copying Mr. Junious Babbs to alert him of this egregious situation and to request that he also utilize his offices to assist in the amicable resolution of this matter. I would also appreciate a report of your findings. Thank you for your attention to this request. JCSt cc: Mr. \u0026amp; Mrs. Eddy Harris Sr. Mr. Billy Bowles Mr. Junious Babbs Ms. Ann Brown  Sincerely, Joy C. Springer Joshua Intervenors :Mr. James Washington Ombudsperson Little Rock School District 810 West Mark.ham Little Rock, AR 72201 Dear Mr. Washington: February 28, 2000 I am writing to request that you investigate the complaints of Mr. Reginald Abrams. I am taking the time to put this request in writing due to the egregious nature of the situation. Mr. Abrams' \"son is a Boys Scout at Cloverdale Middle School. Mr. Abrams complained to me regarding the treatment his son and other black Scouts received while attending the Boys Scout Council Area Banquet on last Thursday evening, February 24, 2000 at Ricks Armory. I have-asked Mr. Abrams to call you with the specific details of this experience. I must state, however, that based upon his communication to me, I do not believe that the Little Rock School District's commitment to inclusiveness and desegregation was demonstrated at this banquet. Upon information and belief, it appears that the black scouts roles at this activity were both demeaning and nonexistent. I must also question the expectations oflv!r. Lacour, the Scout Master, who tolerated this treatment and was reported to have said that he did not expect black parents to participate and thus be able to question the roles and participation of their children during particular scouting activities. Mr. Lacour needs to understand that the spirit of desegregation plan called for activities such as scouting and that \"scouting\" would be an opportunity for black students to have new experiences and be given opportunities to develop skills such as social and leadership skills, to new a few. May I suggest that you conduct an investigation into the scouting programs for the entire District and determine the roles of black students and whether similar situations have occurred. I believe that you should interview Mr. Lacour to determine the schools that he has been working with and the names of other scout masters in the area who work with Little Rock District students. I understand that Mr. Lacour's number is 758-1838 or pager 688-4533 . Mr. Abrams may be reached at 9700 Stardust Trail, Little Rock, AR 72209, telephone number 562-0348. Please let me hear from you regarding the result of your findings and your recommendations to ensure that similar situations do not occur in the future. Thank you for your attention to this request. I believe that it is important that ~fr. Junious Babbs receives a copy of this letter given his role to ensure compliance with desegregation. JCS/ cc: :tvir. Reginald Abrams l\\lir. Junious Babbs Sincerely, Joy C. Springer Joshua Intervenors JOHN W. WALKER RALPH WASHINGTON MARK BURNETTE SHAWN CHILDS Mr. Ray Gillespie Athletic Director Little Rock School District 8 l O West Markham Little Rock, AR 7220 l JOHN W. WALKER, P.A. ATTORNEY AT LAw 1723 BROADWAY UTILE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsimile August 28; 2000 ...... Re: Southwest l\\:liddle School Dear Mr. Gillespie: 773 17l I am writing to request that you investigate the complaints of Mr. \u0026amp; Mrs. Michael Wesley regarding their son, Marquis, a student at Southwest Middle School. Mr. Wesley reports a very disturbing incident that occurred on Friday, August 24, 2000 at the school involving Coach Foote. In summary, Mr. Wesley reports that Coach Foote choked Marquis and has openly admitted doing so. The Wesleys are very upset about Coach Foote actions and request that \"he be dealt with\". We are available to meet with you, if additional information is needed. ncere~y '( h':-I ' Joy . Springe ,, On Behalf of Joshua lntervenors JCS/ JOHN W. WALKER RALPH WASHINGTON MARK BURNETTE SHAWN CHILDS Dr. Leslie Carnine Superintendent of Schools Little Rock School District 810 West Markham Little Rock, AR 72201 Dear Dr. Carnine: JOHN W. WALKER, P.A. ATTORNEY AT LAw 1723 BROADWAY LITTLE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsimile September 12, 2000 I am .vriting on behalf of Marcus Winston, a 9rh grade student at Parkview High School and similarly situated students in the Little .Rock District. Would you please direct my attention to the sec ti off ofthe District' s- student handbook which states that 9th grade students cannot participate in varsity team athletics. It is my understanding that the practice of the District in previous years has been to allow these students to participate on varsity teams. By copy of this letter to Mr. James Washington, I am also requesting that he investigate this matter. I recommend that he identify all 9th grade students at the senior high level to determine the number, race and gender of the students who are being adversely affected by unwritten directive. As I review t~e District's desegregation plan, I note in Section 2.6 of that plan that the District \"shall implement programs, policies and/or procedures designed to promote participation and to ensure that there are .no barriers to participation by qualified African Americans in extracurricular activities .... \" It appears that the District's refusal to allow 9rh grade students to participate in athletics at the varsity level is contrary to plan commitments. This new practice is neither promoting nor ensuring participation. Prior to invoking the process regarding compliance issues, I ask that Mr. Washington provide to this office a report of his preliminary findings. by September 20, 2000. Thank you for your attention to this matter. nin~ero/J~. ,_, . ~- \"44 \u0026lt;J= ; 9t~ ~ / Joy C. Sprin~er ~ ( On Behalf of Joshua Intervenors JCS/ cc: Mr. James Washington, Ombudsman Mr. Junious Babbs, Associate Superintendent Mr. Ray Gillespie, Althletic Director Ms. Ann Brown ?Jf JOHN W. WALKER RALPH WASHINGTON MARK BURNETIE SHAWN CHILDS Dr. Leslie V. Carnine Superintendent of Schools Little Rock School District 8 IO West Markham Little Rock, AR  7220 I JOHN W,,,WALKER, P.A . . _,,. ATI6RNEY AT Ll.w 1723 BROADWAY L!TILE ROCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsimile - 324-2146 October 10, 2000 Re: Duties of Ombudsman Dear Dr. Carnine: Yollf letter of October 5, 2000, in responseto my letter of October 3, 2000, was received by this office today. I look forward to receiving the other requested information. . With respect to the second instance, may I call your attention to a letter dated July 25, 2000 addressed to you from a Parkview parent, Bill Winston? A copy is attached for your convenience. According to Mr. Winston, you did not respond to his inquiry. On September 12, 2000, I spoke briefly with Mr. Gillespie about Mr. Winton's concerns. :tvfr. Gillespie reported to Mr. Winston and me that there existed documentation which communicated to all parents the District's position regarding 9th grade participation on varsity teams for the 2000-2001 school year. This information was requested for the parent through the Ombudsman. To date, this information has not been received. This complaint was subsequently assigned to Dr. Marion Lacey for handling. Dr. Lacey, Mr. Gillespie and I met on September 29, 2000 regarding Mr. Winston's concerns. I was assured by Dr. Lacey that she would provide a written response along with the previously requested information by the Ombudsman and myself By copy of this letter to Dr. Lacey, I hope that this will serve as a reminder that I wouid still like to have her letter and the requested information.  By copy ofthis letter to Mr. Washington, I hope that this also refreshes his memory regarding the requested information that was not shared with him or a parent after inquiry and request for it. Surely, these records do not fall in the category of confidentiality. Moreover, the District has had approximately thirty (30) days to provide the information. Thank you again for your response and consideration giveri to this inquiry. JCS! Enclosure  cc: Mr. Junious Babbs Mr. James w ashington Dr. Marion Lacey Mr. Ray Gillespie Ms. Ann Brown Mr. Gus Taylor 715 Sinferelv, 4~- (/,(L(( (:!, ' !zt:t~ My C. S prmger  . (J On Behalf of Joshua ..... SEP , 13 ! 00 . 7:48 FR NATIONWIDE July 25, 2000 Superintendent Les Carnine 810 W. Markham Little Rock. AR 72202 Superintendent Carnine, 501 223 1749 TO 93744187 Please be advised that I am attempting to contact you by letter, having been unsuccessful so far in getting you to call me back. ! have left several messages with your secretary requesting to speak to you concerning my oldest son, Demarcus Winston, a freshman .scheduled to attend Little Rock Parkview Arts and _Science Magnet High School this year. My lasr attempt to reach you was July 14, 2000 and I was told by your secretary that you were out of town and she would have you call me on Monday, July 24, 2000 upon your return. In any event, my concern involves the situation or status of 9th grade athletes being able to participate on the varsity level. I have spoken with the head football coach, Ernest Mcgee, and the head basketball coach, Al Flanagan, about this issue and they advised they were unclear-on-whether 9th graders could\"play with the varsity, but both were hoping they could. They encouraged me to voice my concerns to you hopefully before any decision is made . . I personally feel that my son would be penalized and held back in his development as an athlete if he were not allowed to play on the varsii:y level. The 9th graders who were good enough to play at the varsity level were allowed to do so last year and I have no idea and, as a concerned parent, have not been given an explanation of why my son would not be allowed to play this year. There is not an organized 9th grade league of competition as there is in the Pulaski County school district. Since the new format now moves 9th graders to Senior High (9-12), then he should be allowed to play. The coaches want him to play, his parents wanr him to play, but I am told that he may not be allowed to play. I would hope that you would consider that my son who is 6-6, 2001bs gets penalized ifhe is not allowed to play with the varsity and compete at the highest levd of competition. I am oguin asking you to discuss this issue with me and listen to my concerns. Sincerely, Mr. Bill Winston 775 JOHN W. WALKER RALPH WASHINGTON MARK BURNETTE SHAWN CHILDS Mr. James Washington Ombudsman Little Rock School District 810 West Markham Little Rock, AR 7220 l Re: 9th grade Athletics Dear Mr. Washington: JOHN W. WALKER, P.A. ATIORNEY AT LAw 1723 BROADWAY LITTLE Rocx, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsimile - 324-2260 September 13, 2000 776 For y0ur information, I am attaching a copy of a letter- that was sent to Dr. Carnine by one of the concerned parents. It is my understanding that Dr. Carnine has not responded to the letter nor has he returned the parent's numerous teiephone calls. Also attached hereto is a list of other parents whose children stand to be adversely affected by the District unwritten rule regarding 9th grade athletics. Hopefully this information will assist you with your investigation. In speaking briefly with Mr. Gillespie on yesterday, he indicated that the District sent notices to parents regarding this matter. Would you also inquire about the notices that were sent to parents and share copies of same with this office. Finally, would you also check to see whether this issue was submitte~ to the Board for approval. .. I look forward to your preliminary report by September 20, 2000. Thank you for your cooperation. JCS/ (r:lyar ~(pnrig~~ On Behalf of Joshua SEP 13'00 7:48 FR NATIONWIDE 501 223 1749 TO 93744187 P . 02/03 776 July 25, 2000 Superin1endent Les Carnine 810 W. Markham Little Rock, AR 72202 Superintendent Carnine, Please be advised th.a! I am attempting to contact you by letter, having been unsuccessful so far in getting you to call me back. l have le.ft several messages with your secretary requesting to speak to you concerning my oldest son, Demarcus Winston, a freshman scheduled to attend Lirtle Rock Parkview Arts and Science Magnet High School this year. My last attempt to reach you was July 14, 2000 and l was told by your secretary that you were out of town and she would have you call me on Monday, July 24, 2000 upon your return. In any event, my concern involves the situaiion or status of 9th grade athletes being able to participate on the varsity level. I have spoken with the head football coach, Ernest Mcgee, and the head basketball coach, Al Flanagan, about this issue and they advised they w_ere unclear on whether 9th graders could play with the varsity, but both were hoping they could. They encouraged me to voice my concerns to you hopefully before any decision is made. I personally feel that my son would be penalized and held back in his development as an athlete ifhe were not allowed to play onthe varsity level. The 9th graders who were . good enough to play at the var.;ity level were allowed to do so last year and I have no idea and, as a concerned parent, have not been given an explanation of why my son would not be allowed to play this year. There is not an organized 9th grade league of competition as there is in the Pulaski County school district. Since the new fonnat now moves 9th graders to Senior High (9-12), then he should be allowed to play. The coaches want him to play, his parents want him to play, but I am told that he may not be allowed to play. I would hope that you would consider that my son who is 6-6, 200lbs gets penalized if he is not allowed to play with the varsity and compete at the highest level of competition. I am ago.in asking you to disc~ this issue with me and listen to my concerns. Sincerely, Mr. Bill Winston SEP 13'00 7:49 FR NATIONWIDE 501 223 1749 TO 93744187 Concerned Parents:  Bill and Tammy Winston (Demarcus Winston, Linle Rock Parlcview) Home Phone# (501)224-5138  Glenn and Karen Anderson (Jamaal Anderson. Little Rock Parkview) Home Phone# (501)224-2593  Lynn and Angie Smith (Nicholas Smith, Little Rock Parkview) Home Number Unknown  Brian and Tracey Salley (Trey Salley, Little Rock Parkview) Home Phone# (501)565-0947  William and Jean Givens (CaTravia Givens, Little Rock Central) Home Phone# (501)562-6882  Fred and Dorothy Blerlsoe (Fred Bledsoe, Jr., Little Rock Central) Home Phone# (501)562-566L  Eric Mcghee (Tori Mcghee, Linle Rock Central) Home Nwnber Unknown P.03/03 776 ** TOTAL PAGE.003 ** STEWART, DONALD M. - rom: LESLEY, BONNIE Sent: Tuesday, June 06, 2000 10:49 AM To: STEWART, DONALD M. Subject: RE: Desegregation Payments to Pulaski Co. Districts Thanks so much for this information. I am understanding it for the first time. -Original Message- Frorn: STEWART, DONALD M. Sent: Wednesday, May 24, 2000 4:17 PM To: CARNINE, LESLIE V. Cc: GADBERRY, BRADY L.; ANDERSON, VICTOR; MILHOLLEN, MARK; BABBS, JUNIOUS; MITCHELL, SADIE; LESLEY, BONNIE Subject: Desegregation Payments to Pulaski Co. Districts Attached to th is email is an Excel worksheet which calculates the total amount of funds received from the State by the three school districts in Pulaski County as a result of the Desegregation Settlement Agreement and various court orders. These calculations are based on the data from the 1999-2000 school year and do change slightly from year to year. In total payments the three districts in Pulaski County will receive approximately $39.5 M. in the 1999-2000 school year. This total is made up of funds for: Magnet School operation ($10.1), M-to-M transfer payments ($13 M), Magnet and M-to-M transportation ($5.9 M), Teacher Rel. \u0026amp; Health Ins. Reimburse. {$10.3 M), and Worker's Compensation Reimbursement ($.2 M). These payments are divided among the three Pulaski County Districts utilizing various methods and result in annual payments on behalf of district students to: LRSD ($19.86 M), NLRSD ($4.88 M), and PCSSD ($14.76 M). M-to-M Funding: Currently M-to-M transfer students are removed from the district enrollment prior to regular State Equalization Aid . computations. If these students were not being funded through the separate M-to-M funding mechanism they would be eligible for regular State Aid and would create approximately $8.5 M per year. LRSD is currently sending a larger number (1100) of M-to-M students than it receives (422) and also, through the pooling agreement, must pay to the PCSSD ($.4 M) for the education of M-to-M students. Because of these provisions, doing away with the M-to-M provision would actually result in an increase in aid to the LRSD of approximately ($1.2 M), while NLRSD wculd lose ($1 .3 M) and PCSSD would lose ($4.1 M). If all M-to-M transfers were returned to their home district, LRSO would be responsible for educating approximately 675 more students than it currently does. At the current rate of expense per student that would cost the district in excess of $4 M. Magnet Funding: Magnet funding is limited to students in the original stipulated magnet school, all located in LRSD. These students are included in the home district's enrollment count for equalization aid purposes. In addition to this funding source, the State is req uired to fund one half the cost of educating these students. This amount is calculated from MRC approved budget submissions and is paid directly to the LRSD on behalf of all students enrolled in those schools. The approved amount for the 1999-2000 school year is approximately ($10.1 M). The amount paid on behalf of each district's students is: 100 LRSD ($6.3 M), LRSD ($1.29 M), and PCSSD ($2.47 M). Magnet \u0026amp; M-to-M Transportation: ?77 The three districts in Pulaski County are currently paid one hundred percent of the costs of providing transportation for all Magnet and M-to-M students, including some expenses for getting these students to after school activities and events. The estimated costs for 1999-2000 is: LRSD ($3.41 M), NLRSD ($.57 M), and PCSSD ($1.94 M). If this funding sourc.e were eliminated there would be no resulting increase in Transportation Aid to the districts from regular State sources. The basic assumption would likely be that all of these cost would also end. Teacher Retirement \u0026amp; Health Insurance: During 1999-2000 the school districts in Pulaski County are projected to receive approximately ($10.28 M) to offset teacher retirement and health insurance costs. This number is somewhat stable but is effected by a number of factors and could change significantly from year to year. Under the present payment calculation any increase in the required contribution rate, (currently $114. per employee, per month and set by the State Board of Education) would result in a corresponding increase in funding to the Pulaski County Districts. The funding breakout by district is currently: LRSD ($6.17 M), NLRSD ($1 .02 M), and - PCSSD ($3.08 M). The cessa tion of these payments would result in a negative bottom line of the amounts received . No offsetting funds would exist and no method for significantly decreasing cost is available. Worker's Compensation: During 1999-2000 the school districts in Pulaski County will receive ($.19 M) to offset costs for providing Worker's Compensation coverage to district employees. These payment amounts by district are currently: LRSD ($.06 M). NLRSD ($.04 M), and PCSSD ($.09 M). Summary: If all special funding for desegregation programs and services were discontinued the ($39.5 M) estimated aid to the three Pulaski County School Districts from desegregation related funding sources would be offset by M-to-M students again being counted for regular State Equalization Aid. When that calculation is made the total aid loss would be app~oximately ($31 M) and by district would be: LRSD ($15.13M ). NLRSD ($4.21 M), and . PCSSD ($11 .66 M). The actual total aid loss to the LRSD budget would be increased by the amount paid directly to the District on behalf of students from the other districts attending Stipulated Magnet Schools. The additional amount would be approximately $3. 76 M but there would also be a decrease in the district's costs since the magnet students attending LRSD schools would by necessity either be reassigned to their home district or some other funding mechanism would need to be put in place. The total aid package is obviously a significant amount of funds and the abrupt loss of these funding sources would necessitate drastic changes in the way all the districts operate. A transition of several years may be necessary in order for the districts to work through the various changes that would be required. 101 STEWART, DONALD M. - om: Sent: To: Subject: BABBS, JUNIOUS Thursday, April 19, 2001 9:19 AM STEWART, DONALD M. FW: LRSD Biracial Committee Request 77! Thanks for agreeing to give him a call. You will find his number listed in an earlier mailing attached. Will stay in touch. Junious C Babbs, Jr jcbabbs@stuasn.lrsd.kl2.ar.us Little Rock School District -Original Message- From: EGGLESTON, DEANA Sent: Wednesday. April 18, 2001 1:51 PM To: BABBS. JUNIOUS Subject: FW: LRSD Biracial Committee Request FYI -Original Message- From: STEWART, DONALD M. Sent: Wednesday, April 18, 2001 2:01 PM To: EGGLESTON, DEANA Subject: RE: LRSD Biracial Committee Request The reason we do not have an estimated completion date on Romine is that we have just started the preliminary design work on that project and until we know exactly what we are going to do we can't guess when it will be complete. I don't know who needs to talk to this person but if Junious want it to be me, let me know. - -----Original Message---- F rorn: EGGLESTON, DEANA Sent: Wednesday, April 18, 2001 10:06 AM To: STEWART, DONALD M.; GADBERRY, BRADY L. Cc: BABBS, JUNIOUS Subject: LRSD Biracial Committee Request We held the April meeting of the LRSD Biracial Committee last night. Delaney Fleming (Joshua's representative) was questioning why the Romine project had no start/ est. completion date on the handout that Don provided. FYI - Delaney has questioned the district's committment to Romine and the \"poor conditions\" of the Romine bldg. many times. Mr. Babbs said that he would check into the projected start dates and have one of you telephone Mr. Fleming. His # is 224-0630. Mr. Fleming's address is 9505 Cerelle, Little Rock, AR 72205 (in Romine's zone). Babbs is out today, however, he wanted me to pass this info along to you. Deana Deana M. Eggleston Student Registration Office (501) 324-2408 dmeggle@stuasn.lrsd.k12.ar.us 37 '/ 1/7 STEWART, Db_NALDM.: \" __ . --___ .''i:\u0026gt;- __ ... . . :c;;. \u0026gt;.:: From: LEASE, KATHY R. Sent: Wednesday, April 25, 2001 2:32 PM To: MILHOLLEN, MARK Cc: STEWART, DONALD M. Subject: Leave Accountability Report Importance: High Mark, I just received the June to March Leave Accountability Report. The names of all those people that we discussed earlier are still on the report. One of my concerns is that they do not have access to their leave information because it was all sent to my department. Another concern is that, again, it looks like there are more people in PRE that there really are. Interestingly enough, Regina Moore got changed to PRE since she is now Karen Broadnax' secretary. The following list of folks do not work in PRE: Mona Briggs, Karen Broadnax, Virg inia Johnson, Shirley Lewis Eddie McCoy, Regina Moore, Rosalyn Summerville. The people who do work for me are the following: Eula Yvette Dillingham, Irma Truett, Charlotte Marks, Malinda Allen , Paulette Denson, and Ed Williams. Thanks for your help in straightening this out. It concerns me that the PRE staff list has not been accurate the whole time I've been here. I'm afraid that it presents a distorted picture of staffing for this department. If there is anything that you need me to do, please let me know. Thanks, Kathy Kathy Lease, Ed.D. Assistant Superintendent Planning, Research, and Evaluation 3001 S. Pulaski Little Rock, AR 72206 501-324-2122 (VM) 501-324-2126 (Fax) krlease@irc.lrsd .k12.ar.us Sent: Tuesday, May 22, 2001 1:01 PM To: WELCH, JANE Cc: LESLEY, BONNIE Subject: RE: Plato Communication grade I did not know that Central was offering a PLATO Communications course. I am going to research my email from last year. Seemingly there was a question about it then either at Central or Hall. -Original Message- From: WELCH, JANE Sent: Tuesday, May 22, 2001 12:15 PM To: LESLEY, BONNIE Cc: GREEN,CAROL Subject: Plato Communication grade I have been given a grade in the Plato Lab for Larts-/communication. We do not have a number assigned for communication. How do I key this grade without an identifying number? Jane Welch, Registrar-Central High school LESLEY, BONNIE From: Sent: To: Cc: Subject: LESLEY, BONNIE Friday, May 25, 2001 4:14 PM BERRY, DEBORAH; BLAYLOCK, ANN; FULLERTON, JAMES; HUDSON, ELOUISE; Larry Buck; MARIAN LACEY; MOSBY, JIMMY; PATTERSON, DAVID; ROUSSEAU, NANCY; SAIN, LLOYD DAVIS, SUZI; AUSTIN, LINDA Middle School Evaluation I understand that you all got \"assigned\" the middle school program evaluation yesterday. Probably most of the stuff you  eed is in the Compliance Report or the Interim Report. I am attaching both for your information. They are long, so you ay want to look at what you need before you print them. I am not at all sure that you need to spend much time on that assignment. Let me check with the superintendent before you do a lot. I know you have many other things on your plate right now. ~ 1 A Final Compliance Report-001 ... Compliance Report, Feb. 2000.d ... Dr. Bonnie A. Lesley, Associate Superintendent for Instruction Little Rock School District 3001 S. Pulaski Little Rock, Arkansas 72206 501/324-2131 501/ 324-0567 (fax) 358 STEWART,\" DONALD M. From: LESLEY, BONNIE Sent: Wednesday, June 07, 2000 11 :31 AM To: CARNINE, LESLIE V.; ANDERSON, VICTOR; BABBS, JUNIOUS; MITCHELL, SADIE; STEWART, DONALD M.; GADBERRY, BRADY L. Subject: FW: AP fyi --Original Message- From: Clay Fendley [SMTP:FENDLEY@fec.net1 Sent: Wednesday, June 07, 2000 11 :13 AM To: BALESLE@IRC.LRSD.K12.AR.US Subject: AP I have received and reviewed you memo on AP enrollment. It looks great! As you know, there will be concern that we are simply lowering the standards so more kids can get into the courses. To counter this perception, it would be nice to show an increased number and/or percentage of students passing the AP exam. For this reason, I would support either requiring them to take the exam or offering some incentive for doing so. 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AO 72A (Rev.8/82) ECEIVED JUL -8 2002 OFF!CF. OF EGREGATIOH MONITORING u.sfo,{b~cRRT IN THE UNITED STATES DISTRICT CO\"fltffERN DISTRICT ARKANSAS EASTERN DISTRICT OF ARKANSAS JUL Q 1 2002 LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER DEFENDANTS INTER VEN ORS INTER VEN ORS Pending is Plaintiffs Motion for a Protective Order and for Emergency Hearing. For the time being, Plaintiff's request for a protective Order against Joshua, or anyone acting on their behalf, is GRANTED. The deadline for exchanging exhibits and witnesses was set on May 15, 2002, for June 21 , 2002. At the request of lawyers for LRSD and Joshua, the deadline was orally extended until 5:00 p.m. on Monday, June 24, 2002. It appears, from the documents attached to Plaintiffs Motion, that Joshua's FOI request was submitted on June 26, two days after the deadline for exchanging exhibits and the names of witnesses. Even assuming the FOI can be used in addition to the Federal Rules of Civil Procedure by a party to litigation, it appears quite certain that this request was not timely. It is my impression, from a quick review of the law, that the great weight of authority precludes a party from using the FOi as a supplement to the discovery rules of the Federal Rules 6 1 1 A072A {Rev.8/82) of Civil Procedure; but, be that as it may, this particular request appears to be manifestly out of time. I note in passing that many, if not most, of the documents requested in the FOI request are not pertinent to the three remaining issues in this case. Accordingly, the LRSD is relieved of any duty to respond to the FOI request by Joshua. If Joshua wants a hearing on this issue, it should file a response to Plaintiff's Motion forthwith, and request a hearing--if such a request is made, a hearing will be set as soon as practicable. IT IS SO ORDERED. DA TED this I 9-:f day of July, 2002. UNITED sT ATESDISTc JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE 1/V!Tb:(oE 58 AND/OR~7~ F9R CP r,;, , ~ ..,___ GY _ - - '\" _ f_t:___ I -2- IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKJ COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S MOTION IN LIMINE RELEVANCE GENERALLY RECEIVED JUL - 8 2002 OFACEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS The LRSD moves to exclude all evidence and testimony of noncompliance with the Revised Plan that was not brought to the attention of the entire LRSD Board of Directors pursuant to Fed. R. Evid. 401 , 402 and 403 . The ultimate issue before this Court is whether noncompliance with the Revised Plan casts doubt on the Board's intent to comply with the Constitution in the future absent court supervision. See Cody v. Hillard, 139 F.3d 1197, 1199 (8th Cir. 1998). Noncompliance that the Board knew nothing about has no bearing on this issue and is irrelevant. See Fed. R. Evid. 401. Section 1983 Liability Standard The issue before this Court is analogous to the issue of whether a governmental entity may be held liable under 42 U.S.C.  1983 for the unconstitutional conduct of its employees. Respondeat superior is not a permissible theory for holding a governmental entity liable for the unconstitutional acts of its employees. Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Instead, a governmental entity is liable under 1983 when \"a policy, statement, ordinance, regulation or decision officially adopted and promulgated - by that body's officers\" can be causally related to the allegedly unconstitutional conduct of its employees. Id. Liability may also be based on \"constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body's official decision-making channels.\" Id. at 690- 91, 98 S.Ct. 2018. See Ryan v. Board of Police Commissioners of the City of St. Louis, 96 F.3d 1076, 1084 (8th Cir.1996). In Ware v. Jackson County, 150 F.3d 873 (8th Cir.1998), the Eighth Circuit explained that: Official policy involves 'a deliberate choice to follow a course of action * * * made from among various alternatives' by an official who [is determined by state law to have] the final authority to establish governmental policy.\" Jane Doe A, 901 F.2d at 645. Alternatively, \"custom or usage\" is demonstrated by: (1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) Th[ e] plaintiff['s] injur[y] by acts pursuant to the governmental entity's custom, i.e., (proof] that the custom was the moving force behind the constitutional violation. Ware, 150 F.3d at 880 (citations omitted) (emphasis supplied). \"(I]naction or laxness can constitute government custom if it is permanent and well settled.\" Tilson v. Forrest City Police Dept., 28 F.3d 802, 807 (8th Cir.1994) (citation omitted). - \"Such a government custom of laxness or inaction must be the moving force behind the constitutional violation.\" Id. \"To establish a city's liability based on its failure to prevent misconduct by employees, the plaintiff must show that city officials bad knowledge of prior incidents of police misconduct and deliberately failed to take remedial action.\" Andrews v. Fowler, 98 F.3d 1069, 1075 (8th Cir.1996) (emphasis supplied). In the context of the present case, the Board is the \"final authority\" in making District policy. During the term of the Revised Plan, the Board adopted and/or re-adopted clear, unambiguous policies indicating its intent to comply with the Revised Plan, federal civil rights statutes and the Constitution. See CX 719. Thus, to cast doubt on the Board's intent to comply with the Constitution in the future, Joshua must establish a \"custom or practice\" of failing to remedy noncompliance with the Revised Plan. This requires that Joshua show \"that [the Board] had knowledge of prior incidents of [noncompliance] and deliberately failed to take remedial 2 action.\" Andrews, 98 F.3d at 1075. Accordingly, incidents of noncompliance of which the Board did not have knowledge are irrelevant. See Fed. R. Evid. 401. Joshua may argue that the District failed to adequately train or supervise its employees who were violating the Revised Plan. It is true that a governmental body may also be held accountable under certain circumstances based on a failure to adequately train and supervise employees. City of Canton v. Harris, 489 U.S . 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In Andrews, the Eighth Circuit summarized these circumstances related to a city police force. The court stated: A city also may be liable for deficient policies regarding hiring and training police officers where (1) the city's hiring and training practices are inadequate; (2) the city was deliberately indifferent to the rights of others in adopting them, such that the failure to train reflects a deliberate or conscious choice by a municipality; and (3) an alleged deficiency in the city's hiring or training procedures actually caused the plaintiffs injury. It is necessary to show \"that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.\" In other words, the plaintiff must demonstrate that the city \"had notice that its procedures were inadequate and likely to result in a violation of constitutional rights.\" Andrews, 98 F.3d at 1076 (citations omitted) (emphasis supplied). In the context of the present case, Joshua must establish that the Board \"had notice that its procedures were inadequate and likely to result in a violation of [the Revised Plan.].\" Id. It is simple common sense that the Board cannot be on \"notice that its procedures were inadequate\" if the Board was unaware of the noncompliance resulting from the alleged procedural inadequacy. Therefore, Joshua must at a minimum show that the Board had knowledge of noncompliance with the Revised Plan in order to cast doubt on the Board's intent to comply with the Constitution in the future absent court supervision. The Revised Plan Requiring Joshua to show, at a minimum, that the Board had knowledge of noncompliance about which they complain is consistent with the Revised Plan. As a part of the 3 Revised Plan, Joshua and the LRSD agreed to a process for raising and resolving compliance issues. Revised Plan  8 outlined a three step process for resolving compliance issues. First, the issue would be brought to the attention of the District. If the parties were unable to reach an agreement, the issue would be submitted to ODM for facilitation. Finally, the issue would be presented to the Court for resolution. During the term of the Revised Plan, all compliance issues raised by Joshua were resolved without the need for facilitation by ODM or resolution by the Court. See Final Report, p. 166. Consistent with Revised Plan  8, the Board expected Joshua to bring to its attention any substantial compliance issues. To facilitate Joshua's monitoring of the District's compliance, the Board agreed in advance to pay Joshua to monitor the LRSD's compliance with the Revised Plan, and Joshua billed the LRSD for monitoring the LRSD's Compliance. See Exhibits 7 and 8 to Plaintiffs Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status. Therefore, Joshua cannot be heard to complain that requiring it to show that the Board had knowledge of noncompliance is inconsistent with the Revised Plan. Conclusion The parties knew there would be compliance issues, and for that reason, agreed to Revised Plan 8. Thus, real question before this Court is not whether there was noncompliance, but how the Board responded to noncompliance. The Board had no opportunity to respond to noncompliance of which it was unaware. Thus, noncompliance that was not brought to the Board's attention is irrelevant and should be excluded pursuant to Fed. R. Evid. 401, 402 and 403 . 4 Respectfully Submitted, LITTLE ROCK SCHOOL DISTRJCT Christopher Heller (#81083) John C. Fendley, Jr. (#92182) FRIDAY, ELDREDGE \u0026amp; CLARK Regions Center, Suite 2000 400 West Capitol Little Rock, AR 72201-3493 (501 - 011 CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by mail on July 2, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 (via hand-delivery) Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 5 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 A072A (Rev.8/82) I O!INO~ NOl!VU3YD3S3Q d030WO zooz s- 1nr u.fo!k~QAr ... , :\\ ;~l'\\~U ::JJi \\i :.il .J :I g EASn fiN Ol6i/ii1CT MH\u0026lt;AN IN THE UNITED STATES DISTRICT COURT JUL O 2 z SA EASTERN DISTRICT OF ARKANSAS 002 LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. RECEIVED MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. JUL - 8 2002 OFACEOF DESEGREGATION MONITORING ORDER DEFENDANTS INTERVENORS INTERVENORS On July 1, 2002, I entered an Order (docket no. 3611) granting LRSD's request for a protective order to the extent that LRSD was relieved of its duty to respond to Joshua's FOI requests, which appeared to be untimely under the May 15, 2002 Scheduling Order (docket no. 3600). However, I permitted Joshua's counsel the opportunity to file a written response to LRSD's Motion for Protective Order and for Emergency Hearing and to request a hearing ifhe deemed it necessary. This morning, I received Joshua's counsel's July 1, 2002 letter, a copy of which is attached to this Order. In that letter, Joshua's counsel requests me to rescind my July 1 Order, allow him an opportunity to file a written response to LRSD's Motion, and \"then allow either party to request a hearing.\" This Order responds to the various points raised by Joshua's counsel in his July 1 letter. First, my July 1 Order admittedly was entered in \"haste\" because LRSD's motion papers declared an \"emergency\" and made it clear that July 1, 2002, was the deadline for it to produce A072A {Rev.8/82) documents pursuant to Joshua's FOI requests. Furthermore, in LRSD's Brief in Support of Motion for Protective Order and Emergency Hearing, its counsel pointed out that Ark. Code Ann.  25-19-104 provides a \"potential criminal penalty (of thirty days in jail) which could flow from the LRSD's failure to respond within three days [to Joshua's FOI requests] .\" This time of year, jails in Arkansas are particularly uncomfortable. Therefore, I hastened to enter my Order before 5 :00 p.m. on July 1, lest I place someone in jeopardy of being hauled off in chains. I want to assure counsel for Joshua that, in entering that Order, I was not \"vexed\" with counsel--somewhat or otherwise. I appreciate counsel for Joshua clarifying that the FOi requests were filed in connection with his ongoing monitoring ofLRSD under the 1998 Revised Desegregation and Education Plan (the \"Revised Plan\"). This important point apparently was not communicated to LRSD, which understandably construed the FOI requests as seeking documents that Joshua intended to use in connection with the upcoming evidentiary hearing which commences on July 22, 2002. J.n LRSD v. PCSSD, 921 F.2d 1371 , 1386 (8th Cir. 1990), Judge Arnold made it clear that, in approving the 1989 global settlement of this case, the Court placed \"a great deal of weight\" on the fact that \"the parties have all agreed to continued monitoring,\" which the Court found to be \"essential.\" Likewise, Exhibit B to the Revised Plan makes it clear that Joshua's counsel will continue his monitoring of the LRSD's implementation of its desegregation obligations. By clarifying that Joshua is seeking the documents described in its FOI requests in connection with its continuing monitoring duties, and not for use in the July 22 hearing, I believe counsel should be able to work out a satisfactory schedule for the production of the requested documents. As an aside, I believe that counsel for both sides have more than enough to do in preparing for the -2- AO 72A (Rev.8/82) upcoming five days of evidentiary hearings beginning on July 22, and should not to have to concern themselves with the collection and production of a large volume of documents related to Joshua 's ongoing monitoring function. It appears to me the production of those documents can and should be delayed until after the completion of the evidentiary hearings that begin in less than three weeks. In conclusion, my July 1 Order will remain in effect until after the evidentiary hearing unless counsel for Joshua can convince me that there is a need for the production of the documents described in the FOI requests before the July 22 hearing. Counsel for Joshua is allowed until and including July 8, 2002, to file a response to LRSD's Motion for Protective Order and for Emergency Hearing. LRSD can submit a short reply by 5:00 p.m. on Thursday, July 11 , 2002. Thereafter, if either party requests a hearing on that Motion, the Court will likely conduct one. IT IS SO ORDE~,- DATED this 1 ~ day of July, 2002. W~R-~ UNITED STATES DISTRICT mDGE -3- JUL . 1.2002 5:55PM JOHN W WALKER PA JOHN W. WALKER, P.A. JOH.,.~ W. WALKER SHAWN CHILDS Honorable Judge William R Wilson United States District Judge 600 West Capitol, Suite 423 Little Rock. AR 72201 ATToRNEY AT LAW 1723 BROADWAY L1TrLE RoCK, ARKANSAS 72206 TELEPHONE (501) 374-3758 FAX (501) 374-4187 Via Facsinule - 604-5149 July 1, 2002 Re: Case No. 4:82CV0866WRW/JTR LRSD v. PCSSD Dear Judge Wtlson: NO .521 OF COUNSEL ROBERT McHENRY, P.A. DONNA J. McHENRY 8210 liEND81!SOl'I RoAD Ltmz Rocr, ~ 72210 l'HON\u0026amp;: (501) 372-3425  J\u0026lt;'AX (501) 372-3428 r.!MA!r..: mchonry,i@awbGll.not - I received your order dated July 1, 2002 after 5:30 p.m. when I returned to the office from a trial before the Honorable George Howard, Jr., USA v. Dennis Wtlliams and Joe Bryant I am surprised that the Court ruled on the matter before I had an opportunity to reply to it. I note, however, that the Court provides that opportunity to reply post hoc by the filing of a motion and requesting a hearing. The apparent premise of the Order is that the requested FOIA documents are intended for use at the trial on July 22, 2002. Moreover, the Court seems so_mewhat vexed ~el. I believe the Court would not be ~ were I to have had a reasonable time in which to respond and to make the follo'Wing explanation. Joshua has been monitoring the District's record of compliance since the entry of the original Decree. In that role, we constantly receive concerns from class members about race related matters in each of the three Districts. We first seek to get the District's infonnation by letter. When that fails, we make a request under FOIA. The District usually responds to our letter requests unless a hearing like the one set for July 22 is approaching. Our monitoring was contemplated by the 8th Circuit and the Settlement Agreements herein. The Court has not been involved with respect to our monitoring unless the District claimed some prejudice in its trial preparation. BetWeen 1998 and June 2001, there was not a single hearing before the Court on any matter involving LRSD that was initiated by Joshua Furthermore, the Office of Desegregation Monitoring and Joshua have obtained information from the District in the same manner for years. The Court has reacted in haste to a matter which is not, and will not be before it. The reaction is seen in the Court's conclusion that the requested information \"appears quite certainn to JUL. 1.2002 5:55PM JOHN W WALKER PA NO.521 P.3/3 be \"not timely\". The Court seems persuaded that we did not meet the deadline for exchanging exlnoits and names of witnesses. We each did so. Mr. Heller's office delivered bis exhibits to us at the close of business on June 24, 2002 and we returned our witness list and exhibits to Mr. Heller by his own courier. We agree with the Court's comments that the requests are pot pertinent to the three rernainine issues in this case as the case relates to the District's compliance as of March 15, 2001. That does not mean, however, that Joshua's monitoring ended upon the filing of the report by the District on March 15, 2001. For the foregoing reasons, I request the Court to simply rescind its Order, afford us a reasonable reply time and then allow either party an opportunity to request a hearing thereon.. In that way, the burden of proof would be upon the moving party on the issue rather than having Joshua in the position ofbeing the moving party. For the information of the Court and the other parties, a criminal jury trial in which I am counsel before Judge Howard is expected to last at least through July 8, 2002. Thank you for your attention to this matter. JWW:js cc: All Counsel of Record Clerk of the Court IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION RECEIVED JUL 8 2002 OFACEOF DESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of December 10, 1993, the Arkansas Department of Education hereby gives notice of the filing of AD E's Project Management Tool for June 2002. Respectfully Submitted, MARK PRYOR Attorney General DENNIS R. HANSEN,# 97225 Deputy Attorney General 323 Center Street, Suite 300 Little Rock, Arkansas 72201 (501) 682-2586 Attorney for Arkansas Department of Education CERTIFICATE OF SERVICE I, Dennis R. Hansen, certify that on July 2, 2002, I caused the foregoing document to be served by depositing a copy in the United States mail, postage prepaid, addressed to each of the following: Mr. M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 200 W. Capitol, Suite 2000 Little Rock, AR 72201 Mr. John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Richard Roachell Attorney at Law P.O. Box 17388 Little Rock, AR 72222-7388 Mr. Christopher Heller Friday, Eldredge \u0026amp; Clark 400 W. Capitol, Suite 2000 Little Rock, AR 72201-3493 Mr. Stephen W. Jones Jack, Lyon \u0026amp; Jones 425 W. Capitol, Suite 3400 Little Rock, AR 72201 Ms. Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Lt~ Dennis R. Hansen IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, ET AL PLAINTIFFS V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL DEFENDANTS MRS. LORENE JOSHUA, ET AL INTERVENORS KATHERINE W. KNIGHT, ET AL INTERVENORS ADE'S PROJECT MANAGEMENT TOOL In compliance with the Court's Order of December 10, 1993, the Arkansas Department of Education (ADE) submits the following Project Management Tool to the parties and the Court. This document describes the progress the ADE has made since March 15, 1994, in complying with provisions of the Implementation Plan and itemizes the ADE's progress against timelines presented in the Plan. - IMPLEMENTATION PHASE ACTIVITY I. FINANCIAL OBLIGATIONS A. Use the previous year's three quarter average daily membership to calculate MFPA (State Equalization) for the current school year. 1. Projected Ending Date Last day of each month, August - June. 2. Actual as of June 28, 2002 Based on the information available at)v1ay j _t 2002,;frie ADE calculated the Equalization Funding for FY 01/02, iUbj'eb(to periodic adJustrr.i'knis: 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. A072A (Rev.8/82) ECEIVED JUL - 8 2002 OFFICE OF ESEGREGATION MONITORING FIL~e EAS ~ S. 1~~ RT IN THE UNITED STATES DISTRICT COURT T RN'2Ji 1 ~NSA EASTERN DISTRICT OF ARKANSAS JUL - 5 2002 LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. ORDER DEFENDANTS INTER VEN ORS INTERVENORS On July 3, 2002, LRSD filed a Motion in Limine and Supporting Memorandum Brief arguing that: (1) because Joshua's witness list fails to comply with the Court's May 15, 2002 Order, Joshua should be required, on or before 5 :30 p.m. on July 10, 2002, to identify the date and time each of their witnesses will be called, to identify the issues on which each witness is expected to testify and to provide a detailed statement of the witnesses' expected testimony on each issue; (2) certain Joshua exhibits should be excluded because they have not been provided to LRSD as required by the Court's May 15 Order; (3) Joshua should not be allowed to call Sadie Mitchell and Junious Babb, because, in earlier evidentiary hearings, Joshua's counsel has called and examined both of them on student achievement, guidance counseling, and advanced placement courses; (4) various Joshua exhibits should be excluded because, on their face, they do not directly relate to the three remaining issues of advanced placement courses, guidance counseling, and extracurricular activities; (5) any testimony from Jim Mosby and Jody Carter related to their recent removal as principals of Southwest Middle School and McClellan High 6 1 6 A072A (Rev.8/82) School should be excluded under Fed. R. Evid. 401 , 402, and 403; (6) Joshua's failure to identify any witnesses or exhibits for use in their \"thirty minutes of true rebuttal\" prevents them from presenting any rebuttal testimony at 8:30 a.m. on July 22, 2002; and (7) Joshua Exhibits 767- 776 and 791 should be excluded under Fed. R. Evid. 801-804, 401-403, and 901. The schedule for LRSD and Joshua submitting their exhibits and witness lists to the Court on July 9 and the commencement of evidentiary hearings on July 22 necessitates an expedited response from Joshua to LRSD's Motion in Limine. Therefore, Joshua must file their response to LRSD's Motion in Limine no later than 2:00 p.m. on Monday, July 8, 2002, and serve other counsel by fax at or before that time. Thereafter, the Court will promptly decide the merits of LRSD's Motion in Limine. Since time is of the essence, this Order will be faxed to counsel of record as soon as it is entered. IT IS SO ORDERED. 11f DA TED this f day of July, 2002. UNITED STATESDlSTRIC DG THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR 7~ ON 7/6/0'6 gy_O-c~,-_=-_..~,a.-- -2- ---- -- RECEIVED .- - -- 'JUL 1 O 2002 OFACEOF DESEGREGATION MONITORING - . ; /:JLt:::,o .. - E.A.s,f;p. Dtsr g;;;. IN THE UNITED STATES DISTRICT QOURT Noisr~;g~ uRr EASTERN DISTRICT OF ARKANSAS JUL OB KA.ivsAs WESTERN_DIVISION JAMs W 2002 By:  MccoR MACK LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO.I , ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL JOSHUA INTERVENORS' RESPONSE TO THE LRSD 1. Joshua Intervenors ' Witness List , CLERK p.1,,1\u0026lt;,\u0026lt;Dl.A ,,...._.u. F [f::RK DEFENDANTS INTER VEN ORS INTER VEN ORS The Joshua Intervenors maintain that their witness list generally parallels the list submitted by the LRSD, by identifying the topics of witness testimony. For example, the LRSD can maintain that the summary of the testimony of Dr. Leslie (for 6 hours) \"provide[s] a detailed statement of the witnesses' expected testimony on each issue\" only on a \"tongue in cheek\" basis.  The Joshua Intervenors face two problems in preparing a witness list, which the LRSD does not face. The LRSD has ready access to all of its witnesses, who are its employees. In contrast, none of Intervenors ' witnesses are employees.1 Moreover, at least 11 oflntervenors' witnesses are subject to the direction of the LRSD. These are witnesses number 1-3, 5, 7, 14-15, 18-19, 23, and 26 on the Intervenors ' list. Nevertheless, the Joshua Intervenors will submit a supplemental witness list by 5 :00 p.m. on 1Doctors Roberts and Ross are experts designated by Intervenors. -1- July 10, 2002. 2. Asserted Failure to Provide Exhibits The LRSD complains about the failure to provide exhibits identified by the numbers 793, 794, 799, 800 and 801. Each exhibit is an LRSD document(s) . . Some are voluminous. By this objection, the LRSD is simply seeking to frustrate the Joshua Intervenors' effort to present the position of the class in a reasonable manner. Exhibit 801, \"LRSD Quarterly Status Reports,\" was the subject of testimony during the earlier hearings. These reports contain information regarding enrollment in advanced courses, as well as the extent to which students succeed. 3. Testimony by Sadie Mitchell and Junious Babbs These associate superintendents served on the LRSD compliance committee during the implementation of the revised plan and have had responsibility for the areas of guidance counseling and extracurricular activities. LRSD plans to offer lengthy testimony by Ms. Mitchell (two hours). The Joshua Intervenors, in contrast, propose to question each administrator for approximately 10 minutes. In this light, it is appropriate to allow Joshua Intervenors to proceed with the testimony, with the LRSD having the right to object to a question as repetitive. 4. Various Exhibits Assertedly Not Relevant to Issues to be Heard The exhibits deal with the following issues: advance placement: 754, 801-802 guidance and counseling: 780, 786-789 extracurricular activities: 746 (lumped statistics), 771, 773 , 775 rebuttal: 743,747,749, 750,755 , 757,758,759,760,762,763 , 764,779, 785 will not be offered: 752, 756, 761, 777, 778, 779, 782, 783 , 784 -2- 5. Testimony from Jim Mosbv and Jodv Carter The Joshua Intervenors do not plan to question Messrs. Mosby and Carter regarding \"their recent removal as principals.\" 6. Rebuttal The Joshua Intervenors will present rebuttal testimony by ODM Monitors Ann Marshall and Gene Jones. They will address the LRSD's testimony at the earlier hearing, which asserted compliance with Section 2. 7 .1 of the revised plan. 7. Joshua Exhibits 767-776. 791 These letters written by Ms. Springer are offered to show notice to the district of various problems. Counsel for Joshua Intervenors intends to explore at the hearing what if any investigation and other responsive actions were undertaken by the LRSD, after receipt of the letters. The LRSD pledged to implement programs, policies and procedures to insure non-discriminatory access to extracurricular activities. Its administrators ' responses to the letters is therefore relevant. The Joshua Intervenors should have the opportunity to seek the authentication of pages 2 and 3 of Exhibit 791 , dealing with guidance, by the testimony of Junious Babbs and Sadie Mitchell. 8. Relevance Generally The LRSD's efforts \"to exclude all evidence and testimony of noncompliance with the Revised Plan that was not brought to the attention of the entire LRSD Board of Directors ... \" [Motion in Limine at 3] and to rely on Section 1983 entity liability standards [Memorandum Brief in Support of Plaintiffs Motion in Limine] is flawed. These gambits ignore the law of the case, and, more particularly, multiple promises, throughout the plan, to implement various activities without regard to whether or not non-compliance was called to the attention of the Board. See, e.g., Revised ,., -.)- Plan Sections 2.5, 2.7, 2.7.1, 2.12.1, 6, and 11. As emphasized in Joshua Intervenors ' response of May 30, 2002, the Court of Appeals has held and reiterated that the terms of settlement agreements in this case provide the standards for measuring the performance of the school districts, here the LRSD. [Memorandum at 47] The Revised Plan does not identify Section 1983 entity liability principles as the standard for evaluating compliance with its terms. Rather, it calls, inter alia, for adoption of various programs, policies, and procedures, their implementation, and monitoring to identify problems and provide a basis for remedial actions. School Board members are not LRSD employees, their commitment is for less than full-time. Manifestly, the plan envisions implementation activities by administrators and other - elements of the work force, without qualification in terms of notice to the school board. Joshua Intervenors ' proof will be consistent with this fran1ework. There will likely be questioning on the adoption of programs, policies, and procedures (largely the domain of the school board). There will be questioning of implementation, or the lack thereof (largely the domain offulltime employees). The effort to exclude evidence, wholesale, is without merit. Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781) 862-1955 Respectfully submitted, John -W. Walker, AR Bar No. 64046 JQHN W. WALKER, P.A. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) -4- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has/been senTby fax and U.S. Mail, postage prepaid to the following counsel ofrecord, on this ,?~ day of l-,, 1,  ----:-2002: -r:;:-- 'I // I Mr. Clay Fendley Mr. Dennis l'l. H en  FRIDAY, ELDREDGE \u0026amp; CLARK Office of the Attorney General 400 W. Capitol, Suite 2200 323 Center Street Little Rock, Arkansas 72201 200 Tower Building Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 I / Joen W. Walker -5- J VHl'i W WHLKt.t-\u0026lt; t-' H N0 . 571 JOHN W. WALKER, P.A. Attorney at Law 1723 Broadway Little Rock, Arkansas 72206 Telephone (501) 374-3758 Fax (501) 374-4187 FAX TRANSMISSION COVER SHEET Date: July 8, 2002 To: Ms. Ann Brawn Marshall Fax: 371-0100 Re: LRSD v. PCSSD, et al. Sender: Jolm W. Walker P. l/6 YOU SHOULD RECEIVE [ _ (including cover sheer)] PAGE(S), INCLUDING THIS COVER SHEET. IF YOU DO NOT RECEIVE ALL THE PAGES, PLEASE CALL \"\u0026lt;(501) 374-3758'\u0026gt;\" The information conr.a.ined uu:his fucsimile message is atto111ey privileged and confidential information intended only fur the use of the individual or entity named aoove. !f the reader of this m~sagc is not the intended recipient, or me emp1oyee or agent responsible to deliver it fo the inrended recipient, you are hereby notified that any dissemination, distribution or copying of this communicttion Is strictly prohibited. If you have received this communication in error, please immediate notify us by telephone, and return the original message to us at the above address via the U.S. Postal Service. Thank you. R CEIVED IN THE UNITED STATES DISTRICT COURTu.folb~cPuRT EASTERN DISTRICT OF AR.KANSAS EASTERN DISTRICT ARKANSAS LITTLE ROCK DIVISION JUL 0 9 2002 J L 11 2002 OFFICE OF OESEG EGATION MONITORING A072A (Rev.8/82) LITTLE ROCK SCHOOL DISTRICT V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. ORDER DEFENDANTS INTERVENORS INTER VEN ORS Earlier today, United States Magistrate Judge Tom Ray conducted a hearing to receive the parties ' pre-marked exhibits, exhibit lists, witness lists, and witness statements as provided for in paragraph 5 of my May 15, 2002 Scheduling Order. In addition, at my request, Judge Ray also addressed several housekeeping matters associated with the hearing that I have scheduled for 8 :30 a.m. on Friday, July 12, 2002, on LRSD's Motion In Limine. I have now reviewed the transcript of the hearing before Judge Ray, and want to reiterate several points covered during that hearing. First, the evidentiary hearing that is scheduled to commence before me at 8:30 a.m. on July 22, 2002, is limited to testimony and other evidence relevant to LRSD's alleged failure to substantially comply with its obligations in three specific areas of the Revised Plan: (1) advanced placement courses ( 2.6 and 2.6.2); (2) extracurricular activities ( 2.6); and (3) guidance A072A (Rev.8/82) counseling ( 2.6.1 and 2.11.1 ). The only other evidence the Court will receive during the July 22 hearing will be limited to: (a) LRSD's obligation of good faith( 2.1), but only as that obligation specifically relates to these three things: advanced placement courses, extracurricular activities, and guidance counseling; and (b) LRSD's obligations regarding African-American students' achievement ( 2.7), but only as that obligation specifically relates to these three things: advanced placement courses, guidance counseling, and extracurricular activities. 1 Second, after reviewing Joshua's witness list and witness statements, it appears to me that some or all of the anticipated testimony of a number of their witnesses falls outside the scope of the July 22 evidentiary hearing, as defined above, and as defined earlier by Judge Wright, and by my Order of May 9. I assume these potential problems will be cured by the supplemental witness lists and statements that Joshua and LRSD will file by 5:00 p.m. tomorrow. In connection with those supplemental witness lists and statements, I expect both sides to comply fully with each and every requirement of paragraph 3 of my May 15 Scheduling Order. Third, I want to reiterate that I will be continuing the practice followed by Judge Wright of allocating and keeping time for each side during the July 22 hearing. As my May 15 Scheduling Order makes clear, Joshua and LRSD are each allocated twenty hours to present their cases. Each side should keep this overall time constraint in mind in calling and examining their witnesses. Absent compelling circumstances, I do not intend to give either side more than their allocated twenty hours. 11 am mindful that Joshua also will be allowed thirty minutes at the beginning of the July 22 hearing to call Ann Marshall and Gene Jones as rebuttal witnesses on the three issues tried to conclusion during the earlier evidentiary hearings before Judge Wright: (1) good faith; (2) African-American student achievement; and (3) student discipline. -2- A072A (Rev.8/82) Finally, I have reviewed the so-called \"rebuttal exhibits\" that Joshua intends to introduce during the rebuttal testimony of Ann Marshall and Gene Jones. Many of these rebuttal exhibits appear to be documents that were available and could have, and, if they wanted them in evidence, should have, been introduced by Joshua in their case in chief. During the July 12 hearing, Joshua's counsel should be prepared to address how those exhibits constitute true rebuttal documents. The lawyers for the parties, especially the lawyers for LRSD and Joshua, should have someone watching their fax machines commencing no later than 8:30 a.m. this Thursday, July 11. It is possible that I will enter an Order early Thursday morning in response to filings made by these parties Wednesday afternoon. The Order may require additional work before the hearing scheduled for 8:30 a.m. this Friday, July12. IT IS SO ORDERED#. DATED this qr aay of July, 2002. UNITED STATES DISTRIC'i'JUDGE -3- FAX COVER SHEET UNITED STATES DISTRICT COURT Eastern District of Arkansas JAester,'1 Division Telephone 501-604-5140 Fax Number 501-604-5149 TO: Chris Heller \u0026amp; Clay Fendley Sam Jones . 376-2147 376-9442 3i5-1027 221-3331 374-4187 682- 2591 371-0100 Stevejones Richard Roachell John Walker Dennis Hanson Anne Marshaii DATE: There are _\"f.J pages, including this Cover Sheet, being sent by this facsimile transmission. Z:0/10 3rnrl MESSAGE SENT BY: Office of Judge Wm. R. Wiison, J; U.S. District Court 600 West Capitol, Room 423 Little Ro,..,~ \"R 7,,0, ~,, I \"-\"-J ~ ,, t RECEIVED JUL 1 5 2002  OFFICEOF ESEGREGATION MONITORING LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICTNO.l, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL JOSHUA INTERVENORS' WITNESS LIST DEFENDANTS INTER VEN ORS INTERVENORS The Joshua Intervenors submit their witness list in response to the Court's several directives regarding these matters. Joshua is presenting below a summary of the testimony in some detail of each witness it will call on direct. Joshua is presenting a table of the name of each witness, the expected time each witness will take on direct examination and the approximate time of the appearance of each witness. The times of the appearances of each witness are presented taking into account an equal an1ount of cross examination time by the plaintiff. Possible times for lunch breaks are included. In presenting the matter in this manner, we do not intend to offend the Court by suggesting the exact times of breaks and/or for lunch, nor do wish to offend the Court by presenting this document in this fashion. The manner in which we present it will provide the Court and the parties a timeline of expected testimonial events and provide easy and ready reference to each forthcoming event. We expect our case in chief to be approximately 11 hours (660 minutes). We expect to use the remaining time for either cross examination or for rebuttal (up to two hours). -1- SADIE MITCHELL: The issues Sadie Mitchell will address are extra-curricular activities and guidance counseling. Her respective testimony is that Joshua raised issues of disparate treatment with respect to extra-curricular activities for which she or some subordinate made responses. She will address examples such as discrimination in 9th grade athletics, band, scouts, choir, mock trial, quiz bowl, cheerleaders and the activities wherein participation by race is reflected in the various student yearbooks. She will also address the complaints regarding student honors and efforts to improve minority paiiicipation in AP and honors type activities particularly at Central and Hall High Schools. She will also relate to the inadequacy of data collection regarding extra-cunicular activities and the decision to aggregate rather than disaggregate activity data. She will confirm that aggregation of the data presents a false picture of activity participation in the respective schools which include all the secondary schools. She will also address the failme rates in advanced placement courses as reflected in the Quarterly Reports previously discussed before Judge Wright. JUNIOUS BABBS: Junious Babbs will address the identification of particular athletic programs and other activities with limited African American participation and plans for remediation, review of each school's annual guidance report to identify areas of limited service to African American students such as a) course enrollment facilitating access to stronger higher education opportunities; b) access to financial aid; and c) course enrollment to help to facilitate graduation. He will also address his investigation into the participation and inequities thereof of minority students in AP courses and the passing and failure rates related thereto. MS. SHARON BROOKS: Ms. Sharon Brooks will testify regarding her placement of -2- elementary school African American boys without utilization of counseling services for a period of two months. She will address failure to provide a teacher and a counselor for those boys, whom she separated from the girls. DR. MICHAEL FAUCETTE: Dr. Michael Faucette, a teacher at Central High School, will discuss in detail the problems with the administration of advanced placement courses, the racial effect of the placements, the manner in which the placements are made, how the placements tend to favor one group of children over another, the problems with scheduling and how those scheduling decisions interact with other decisions of placement and counseling; participation in extra-curricular activities; the favor given to white students at Central high School; the disparate effect of AP courses with respect to teaching, awards, and other oppo1iunities; and he will discuss the issue of the District's good faith compliance. MS. PAM MERCER: Ms. Pam Mercer, an African American parent, will discuss the District's good faith establishment and administration of AP courses at Central High School, the exclusion of African American students therefrom, the privileges extended by AP teachers and activities sponsors to white students, counseling of students for placement in AP courses and the racial atmosphere which exists within AP classes. She will discuss her membership on the Activities Advisory Board for the school district and her dissatisfaction with its efforts. CRYSTAL MERCER: Crystal Mercer will discuss her dissatisfaction with guidance counseling services with respect to the following areas: access to financial aid and course enrollment facilitating access to stronger higher educational oppo1iunities. JASON MERCER: Jason Mercer will discuss his dissatisfaction with the District's efforts to ensure more African American student participation in AP courses. He will also discuss content ., -.)- of Exhibit 797. D.J. THAMES and A VIS THAMES: D.J. Thames, student at Fair High School and Avis Thames, his mother. Their testimony will cover their dissatisfaction with the District's efforts to ensure fair participation in extra-curricular activities such as football. ROMONA HORTON: RomonaHorton,parentof students at Central High School and Forest Heights Jr. High School will testify regarding her dissatisfaction with the District's efforts to encourage her children's participation and retention in Pre AP and AP courses at their respective schools. She will also testify regarding her dissatisfaction with counseling services with respect to her children's success in the classes, access to financial aid and course emollment facilitating access to stronger higher educational opportunities. In addition to testimony regarding dissatisfaction with her children's participation in AP, she will also address the use of racial slurs by an AP teacher. She will also discuss the District's response to her complaints. JODIE CARTER: Jodie Carter will discuss special problems with AP classes in the school district as a whole and at McClellan High School in particular. He will specifically relate to the manner in which courses are constituted at the various schools. The problem with staffing the classes and in filling the classes at the various schools. He will discuss his understanding of guidance counseling as it relates to AP placement, participation in extra-curricular activities and the District's good faith. He will specifically relate to problems that he has observed regarding school board members' support of AP classes, guidance counseling and extra-curricular activities. He will discuss the issue ofracial placement and how the counseling system has worked in his observation at the school district over time. This necessarily will include the varying levels of support provided by the central administration with respect to AP courses, guidance counseling and extra-curricular -4- activities at McClellan in comparison to Parkview and Central High School. MS. DOROTHY MCDONALD: Ms. Dorothy McDonald will discuss counseling in general and at McClellan High School in particular. She will discuss the way counseling has a more negative impact on African Americans than white students at McClellan High School and as she understands it to be at other schools based upon her meetings with JoEvelyn Elston and other persons who oversee and administer the other counseling progran1s. MS. CASSANDRA NORMAN: Ms. Cassandra Norman, Principal at J.A. Fair High School will discuss counseling services, placement in pre AP and AP classes at both the middle and Jr. High school and high school and how those courses differ from similar courses at Central and Parkview High Schools. She will discuss AP class sizes, expenditures, teacher turnover and the support of school administrators for her school with respect to these issues. She will address issues regarding counseling within Fair and the problems with a counselor that she had whodid not address the issues in equitable way regarding African American students. CHRIS PAYNE: Chris Payne a former student at J.A. Fair High School will discuss race discrimination in extra-curricular activities. His efforts to participate in the Quiz Bowl at Fair, counseling that he received at Fair while he was there, and the fact that he did not feel that he was fairly treated with respect to those subjects. MR. KENNETH MOORE: Mr. Kenneth Moore will discuss extra-curricular activities, counseling and good faith compliance. His testimony will relate to his experiences at Hall and Fair High Schools and how counseling works at those schools to the detriment of African American students with respect to their participation in extra-curricular activities and with respect to their AP type placements. -5- MR. RAY GILLESPIE: Mr. Ray Gillespie will discuss his role with respect to overseeing the athletic extra-curricular programs and activities and assisting in the monitoring of school programs at the direction of Les Carnine to ostensibly assure eliminating racial discrimination. He will testify regarding the lack of suppo1i that he received in his efforts to achieve equity and his conclusion that African American students and staff are treated differently with respect to these subject areas in comparison to similarly situated white persons. MR. JIMMY MOSBY: Mr. Jimmy Mosby will discuss guidance counseling, extra-curricular activities and pre AP courses during his tenure at Hall High School and at Southwest Middle School. He will address the District's lack of support with respect to pre AP and cow1seling. MS. SUE STRICKLAND: Ms. Sue Strickland will address guidance and counseling programs, AP courses, class sizes of AP courses, pupil teacher ratio, criteria for placement into the programs or the lack thereof or the rationale therefore and the board's good faith. Ms. Strickland will also address the lack of truthfulness by Superintendent Carnine with respect to communication with the school board. DR. KA THERINE MITCHELL: Dr. Katherine Mitchell will address guidance and counseling programs, AP courses, class sizes of AP courses, pupil teacher ratio, criteria for placement into the programs or the lack thereof or the rationale therefore and the board's good faith. DR. MICHAEL DAUGHTERY: Dr.Michael Daughtery will address guidance and counseling programs, AP courses, class sizes of AP courses, pupil teacher ratio, criteria for placement into the programs or the lack thereof or the rationale therefore and the board's good faith. He will discuss his efforts to understand the necessity for relating counseling to AP and pre AP placement, monitoring counseling programs and AP programs and his efforts to have AP programs -6- to become more inclusive for minority students. He will discuss how students can be expected to succeed in AP courses in middle and high schools if they haven't been taught and properly counseled in the earlier grades. DR. TERRENCE ROBERTS: Dr. Tenence Roberts is a District Consultant regarding desegregation activities. He will address the necessity for there to be a correlation between guidance counseling and placement in AP courses. He will discuss the manner in which he has been used by the District to train teachers with respect to these subjects in particular and other subjects in general in Little Rock. Counsel is endeavoring to have him available on either July 23 rd or July 24th . He lives in California and travel arrangements have not been made. DR. STEVEN ROSS: Dr. Steven Ross will testify about the District's good faith compliance, AP courses. He will also discuss the need for criteria for placement and whether all students may be qualified in the absence of standards for placement in AP courses without earlier foundations and specific training. MS. ETHEL DUNBAR: Ms. Ethel Dunbar, Principal at Franklin Elementary School will discuss elementary good faith compliance, gifted and talented courses, guidance cotmseling and the assistance received with respect to these issues from the Division of Instruction. REBUTTAL Name Date of Testimony Approximate Time Minutes Ann Marshall 7/22/02 8:30 - 9:00 a.m. 15 Gene Jones 7/22/02 15 -7- DIRECT EXAMINATION Name Date of Testimony Approximate Time Minutes Sadie Mitchell 7/22/02 9:30 a.m. 30 Junious Babbs 7/22/02 10:30 a.m. 30 Sharon Brooks 7/22/02 11 :30 a.m. 15 7/22/02 Lunch 12-1:00 p.m. 60 Dr. Michael Faucette 7/22/02 1:00 p.m. 90 Pam Mercer 7/22/02 4:00 p.m. 30 Crystal Mercer 7/22/02 5: 00 p.m. 10 Jason Mercer 7/22/02 5:20 p.m. 15 D .J. Thames/ A vis Thames 7/22/02 6:30 p.m. 15 Romona Horton 7/23/02 8:30 a.m. 30 Jodie Carter 7/23/02 9:30 a.m 120 7/23/02 Lunch 12- 1 :00 p.m. 60 Dorothy McDonald 7/23/02 2:30 p.m. 15 Cassandra Norman 7/23/02 3:00 p.m. 45 Chris Payne 7/23/02 4:30 p.m. 10 Kenneth Moore 7/23/02 4:50 p.m. 15 Ray Gillespie 7/23/02 5:20 p.m. 15 Jimmy Mosby 7/24/02 8:30 a.m. 15 Sue Strickland 7/24/02 9:00 a.m. 10 Dr. Katherine Mitchell 7/24/02 9:20 a.m. 10 Dr. Michael Daughtery 7/24/02 9:40 a.m. 30 Dr. Terrence Roberts 7/24/02 10:40 a.m. 30 -8- Dr. Steven Ross 7/24/02 Ms. Ethel Dunbar 7/24/02 Robert Pressman, Mass Bar No. 405900 22 Locust A venue Lexington, MA 02421 (781 ) 862-1955 11 :40 a.m. 1:45 p.m. Respectfully submitted, ,,,-,, Jdhn W. Walker, AR Bar No. 64046 vJOHN W. WALKER, P.A. 1 723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) -9- 30 30 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent by fax and U.S. Mail, postage prepaid to the following counsel of record, on this 10th day of July, 2002: Mr. Clay Fendley FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 I . ,,('(;~~--/:.,/ J,ohn W. Walker . RiCEIVED JUL 1 5 2002 OFACEOF - SEGREGATION MONITORING J:JL 1 O 2~:;, JAMES W r, :,..c .. IN THE UNITED STATES DISTRICT CO   .- ., -ORMACK, CLERK EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. CASE NO. 4:82CV00866 WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. 1v1RS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. JOSHUA lNTERVENORS' SUPPLEMENT AL WITNESS LIST PLAINTIFF DEFENDANTS INTER VENO RS INTER VENO RS Joshua filed its Witness List earlier today. Inadvertently omitted was the name of Ms. Pat Watson, Counselor at Hall High School. Her name is being submitted as a witness who will address the District 's counseling programs, her instructions as to how they are to be implemented and how they are in fact implemented at Hall High School. She will address the counseling role for placement into Pre-AP, AP and Honors courses and she will relate to the counseling with respect to scholarships and other opportunities as well as course enrollment . Her testimony will take approximately 15 minutes. We urge to allow us to use her testimony on either the 23 rd or 241h if we are making substantial progress and have additional time we have not used in our case and chief. Otherwise her testimony will that of Ms. Ethel Dunbar on July 24th at approximately 3:00 p.m. Respectfully submitted, Robert Pressman - MA Bar No. 405900 22 Locust Avenue Lexington, MA 02421 (781) 862-1 955 \"'John W o.-64046 JOHNW. WALKER, PA 1723 Broadway Little Rock, AR 72206 501-374-3758 501-374-4187 (fax) CERTIFICATE OF SERVICE I do hereby state that a copy of the foregoing Motion has been sent to all counsel of record via United States mail postage prepaid on 1~10'11 ~-ay of ~uly , 2092. \\ Ml , ! I ' / -~ / \";c' L}/ -' / . ~ /Ar~-;/ tz~-tt i \\, RECEIVED FILED U,S, DISTRICT COURT EASTE~N DISTRICT ARKANSAS JUL 1,2 2002 IN THE UNITED STA TES DISTRICT COURT JUL 1 0 2002 OFACE OF DESEGREGATION MONITORING EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. , 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1., et al MRS. LORENE JOSHUA, et al KATHERINE KNIGHT, et al ORDER DEFENDANTS INTERVENORS INTERVENORS Attached is a copy of the transcript of the telephone conference held yesterday afternoon. The directions in this transcript are the orders of the Court. - ord.LRSDI IT IS SO ORDERED this 10th day of July, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE VV!TH RULE 58 AND/OR 7~ FRCP oN_!Jd__O-Od::'BY -,~~----'-~=-  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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, V . No. 4:82CV00866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al., Little Rock, Arkansas July 9, 2002 4:45 P.M. Defendants, MRS. LOREN JOSHUA, et al., Intervenors, KATHERINE KNIGHT, et al., APPEARANCES: Intervenors. TELEPHONE CONFERENCE BEFORE THE HONORABLE WILLIAM R. WILSON United States District Judge. For the Plaintiff: CHRISTOPHER J. HELLER, ESQ. Friday, Eldredge \u0026amp; Clark Regions Center, Suite 2000 400 West Capitol Avenue Little Rock, Arkansas 72201 For the Defendant: (No appearance. ) Carolyn S. Fant United States Court Reporter 1 1 For Joshua Intervenors: ROBERT PRESSMAN, ESQ. John Walker, P.A. 2 1723 Broadway 3 4 Little Rock, Arkansas 72206 Proceedings reported by machine stenography; transcript 5 prepared by computer . 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Carolyn S. Fant United States Court Reporter 2 1 2 P R O C E E D I N G S THE COURT: All right, we're having a telephone 3 3 conference hearing this afternoon on the record in Little Rock 4 School District against Pulaski County, et al. It's 5 LR-C-82-866. This conference is regarding a letter that was 6 just hand delivered to me dated July 9 from Mr. Walker and Mr. 7 Pressman. It shows a copy to Mr. Heller. I am going to 8 notify by letter in the morning other lawyers of this 9 telephone conference so that they can order a transcript of 10 this hearing if they want to from Ms. Fant. But in any event, 11 I want to address this letter, and I will just start with the 12 first paragraph. Apparently Joshua got Exhibits 793 and 801 13 over to Judge Ray's courtroom deputy, Ms. Swanson, this 14 afternoon as was directed by Judge Ray this morning. By the 15 way, Judge Ray is here in my conference room. But I 16 understand there are other exhibits that have not been brought 17 over for marking, which are 794, 799 and 800 and I'm puzzled. 18 What's the problem with them, Mr. Pressman? 19 MR. PRESSMAN: One of the exhibits is five 20 yearbooks, and we were told that we could pick up the year- 21 books at five different high schools. 22 23 THE COURT: Okay. MR. PRESSMAN: And take them away to copy. And Mr. 24 Walker wasn't here. I didn't know how to handle that. 25 THE COURT: Okay, I will give you -- 794 and 799 and Carolyn s. Fant United States Court Reporter 1 800 I will give you until 2:00 p.m. tomorrow to do what's 2 necessary to have them delivered to Ms. Swanson by 2:00 p.m. 3 All right, are there other exhibits that we need to 4 address? 5 6 7 8 9 10 MR. PRESSMAN: No, I don't think so. THE COURT: All right, let's look at paragraph 1 of the letter; that he and Judge Wilson are apprised of the following position: \"One, we want to reserve for rebuttal that part of our 20 hours which we do not utilize in our case in chief.\" I'll, of course, allow you to reserve a certain 4 11 amount of time for rebuttal. I will remind you again that I'm 12 big on true rebuttal, not just more evidence that could have 13 been introduced during your case in chief. And I wouldn't 14 allow you, for example, to put on five hours of testimony and 15 reserve 15. What do you want? About an hour or two hours for 16 rebuttal, Mr. Pressman? 17 MR. PRESSMAN: That was -- that was -- that's what 18 Mr. Walker told me. He has handled this. 19 THE COURT: Is Mr. Walker there with you? 20 21 22 23 MR. PRESSMAN: No, he's at the courthouse. THE COURT: Well, I will give you two hours for rebuttal and you notify me by 2:00 p .m. tomorrow by fax -Judge Ray and me both by fax and the other parties if you want 24 more than two hours reserved for rebuttal. I'm not inclined 25 to reserve much more than that, but I will give you an Carolyn S. Fant United States Court Reporter 1 2 3 4 5 6 7 8 9 opportunity to address that. If you haven't addressed it by 2:00 p.m., I will assume that two hours is satisfactory with you. Now the next sentence in paragraph 1 I find quite disturbing. It says, and I quote: \"We'll attempt to provide a more specific response regarding rebuttal time in our supplemental document regarding our witnesses.\" Now, I entered this order in May directing the identity of witnesses and detailed statements with respect to 5 10 what they were going to say, and that order was not met. The 11 12 13 14 15 16 17 requirements of that order were not met. Judge Ray today extended that until 5:00 p.m. tomorrow. As I understand, Mr. Walker was in the courtroom part of the time, at least, but I'm not sure I understand what \"attempt\" -- why you use \"attempt\" rather than say \"we will comply.\" If you will look  at the title of that document that I entered back in May or those two documents, the word \"Order\" is there, not 18 suggestion. 19 And so would you address .that, what the problem is 20 with that, not getting that detailed statement or just 21 attempting to do it? 22 23 24 25 MR. PRESSMAN: I have not been involved in the development of the facts regarding these three areas. I was asked to do this hearing because Mr. Walker was not available. THE COURT: Well, of course, he knew well in advance Carolyn S. Fant United States Court Reporter 1 2 3 4 5 6 7 8 of the trial before Judge Howard he was going to have it and he's had since May to meet those directions. You need to get him tonight and tell him that I'm going to take a very dim look at an attempt rather than a full compliance by 5:00 p.m. tomorrow. Will you pass that message on to him specifically? MR. PRESSMAN: Yes. THE COURT: All right, I appreciate it very much. In paragraph number 2, I'm going to solve that 9  problem real quickly. Just assume that the other side will 10 take as long for cross-examination as you take for direct and 11 we'll worry about whether I ask questions or not. That won't 12 13 14 15 count against you, of course, so that should make it very easy. Any problems with that? MR. PRESSMAN: I will just we'll comply. I just 16 wish to say that I think that attorneys -- it's proper to 17 inform the Court if you feel that the Court's orders are 18 unreasonable, and that was the reaction that we had to these 19 orders about timing. 20 21 THE COURT: What's unreasonable about it? MR. PRESSMAN: Because these things just can't be, 22 you know, determined with that degree of precision. 6 23 24 25 THE COURT: Well, you know, of course, judges across the country are doing this regularly. I know one judge from -- district judge in Chicago who is now in the last couple of Carolyn S. Fant United States Court Reporter 1 years been promoted to the Seventh Circuit who runs two stop 2 watches, and they count objections against your time if you 3 don't win them, so I don't think that's unreasonable at all. 4 So I'm directing that you comply with it . And, like I say, 5 just give your time for direct examination and assume the 6 other side is going to take the exact same amount of time for 7 cross so you can calculate it. 8 Now I will say this, and I hesitate to say it 9 because I don't want to sound like I will give too much 7 10 leeway. You have a total amount of time here so if you want to 11 go 30 minutes on a witness that you estimated at 20 and take 12 13 14 it off another witness, that's all right. The total amount of time, that is the main thing. However, I'm not going to allow taking much more than your estimated time because what will 15 happen we'll get down to the end and you say, \"I have the most 16 crucial witness I've got in the whole case and I don't have 17 any time to put them on . \" So you'll have to stick pretty 18 close to your projected time . So that issue has been 19 resolved. 20 On the next page, the last page, the second page: 21 \"Last, we want to again point out we do not have the same 22 ability as the LRSD to control the order in which our 23 witnesses will appear. We are not dealing with persons who 24 25 are our employees.\" I'll cure the problem right now. Subpoena your witnesses for 8:15 on July the 22nd. Have them Carolyn S. Fant United States Court Reporter 1 all there . I will get them in the courtroom, swear them in, 2 and tell them to either stay at the courthouse or be where 8 3 they can be reached by telephone so you can get them there. I 4 will take that burden off your back, Mr. Pressman. 5 Hello? 6 7 8 9 10 11 fees? 12 13 MR. PRESSMAN: Yes. THE COURT: Doesn't that solve it? MR. PRESSMAN: Okay . Yes, it solves it. THE COURT: All right. MR. PRESSMAN: I guess we have to pay them witness THE COURT: I would assume. It's very unlikely -- if the exhibits are not over 14 here by 2 : 00 p . m. tomorrow that we have designated, it's very 15 unlikely I will allow their use at the trial. 16 Are there any other issues that we can resolve at 17 this point? If not, I'm going to sign off. 18 19 Honor. 20 21 MR. HELLER: We haven't seen that letter, Your THE COURT: Who's speaking? MR. HELLER: I'm sorry. This is Chris Heller. But 22 it sounds like the issues have been covered and we certainly 23 don't have any other issues at this point. 24 25 THE COURT: All right. How about you, Mr . Pressman? MR. PRESSMAN: No, I don't have any other issues, Carolyn S. Fant United States Court Reporter 9 1 but I think that Your Honor's approach doesn't account for the 2 3 4 5 6 7 different kind of practice that Mr. Walker has from a large law firm that has a school system as a client. THE COURT: In what respect does it not account for it. What specifically? MR. PRESSMAN: Because there aren't the same resources available. Mr. Walker is a unique resource in 8 Arkansas. People are constantly calling him from all over the 9 10 11 12 13 14 state every day about their civil rights problems. His time is called upon from scores of different directions. He has a lot of pressures on his time. He does the best he can within that context, and it's not as easy to comply with these kinds of directives for him as it is for a large law firm. THE COURT: Well, you know, I practiced for many 15 years as a solo practitioner in a small firm and judges 16 imposed these burdens on me regularly, and I just figured that 17 I had to double up. Of course, I was a mere street lawyer, 18 but I would suspect I probably got as much or half as much 19 again number of phone calls as Mr. Walker gets during the day, 20 so he's had since May to do this. This is a major trial. I 21 don't believe he has a more major trial. You are here, so it 22 23 24 looks to me like, Mr. Pressman, since you're one of the counsel of record you may need to stay hooked in here real tight and make sure the deadlines are met. I want you to 25 convey this to Mr. Walker very distinctly. I am not going to Carolyn S. Fant United States Court Reporter 10 1 treat him differently than I treat other lawyers. Lawyers in 2 big firms -- I happen to have had the happy experience of 3 being in a big firm myself for over two and a half years in 4 the litigation department, and the lawyers are -- each one has 5 an extremely busy practice. Now we all have a tendency when 6 we are not in one of the big firms to say, \"Oh, they've got a 7 hundred or 80 lawyers up there,\" but unfortunately each of the 8 80 or 70 lawyers has -- they are as busy as a solo 9 practitioner. They have their own solo practice, in effect. 10 I have been there, done that, and I used to get, \"You're at a 11 big firm. You\"ve got five partners that can do this, that or 12 the other.\" So I am distinctly unimpressed with that 13 position. I appreciate your expressing it and I'm glad you 14 did because it gives me an opportunity to make it clear that 15 I'm going to hold Mr. Walker to the same standard that I'm 16 going to hold the lawyers representing the other parties. 17 Everybody is going to be treated equally. 18 Is there anything else that we can bring up? I will 19 be happy to hear anything else; an objection, a complaint, 20 whatever else. I'm in a rulifying and commenting mood. 21 MR. HELLER: Your Honor, we don't have anything. 22 THE COURT: Mr. Pressman? 23 MR. PRESSMAN: No. I mean, I just basically 24 disagree with your positions but that's -- you're the Judge. 25 THE COURT: Mr. Pressman, you know, at least half of Carolyn S. Fant United States Court Reporter 11 1 the lawyers in every case I have disagree with my position and 2 that's one of the wonderful reasons that we have an Eighth 3 Circuit in case I don't do right. But I do appreciate your 4 comments. I take them into consideration. I just I don't 5 agree with your position and particularly not that I should 6 treat Mr. Walker differently than I should another lawyer. I 7 would consider that a very, very bad thing if I did that to 8 any lawyer . 9 All right. There being nothing else that I hear 10 from the lawyers, I want to thank you all for taking this call 11 on short notice and you go have a good evening to the extent 12 you can after my rulings. 13 MR. HELLER: Thank you, Your Honor. 14 MR. PRESSMAN: All right . Thanks. 15 16 17 18 19 20 21 22 23 24 25 (At 5:00 p.m., the above-entitled proceedings were adjourned. ) C E R T I F I C A T E I, Carolyn S. Fant, Official Court Reporter, do hereby certify that the foregoing is a true and correct transcript of proceedings in ~e above-ent Carolyn S. Fant United States Court Reporter IN THE UNITED ST A TES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKl COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KA THERINE KNIGHT, ET AL PLAINTIFF'S REVISED WITNESS LIST FOR THE JULY 22, 2002 HEARING RECEIVED JUL 1 l 2002 OFFICE OF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTER VEN ORS Plaintiff Little Rock School District (\"LRSD\") hereby identifies the following witnesses to be called at the July 22 , 2002 hearing and provides a detailed statement of their expected testimon y: 1. Dr. Bonnie Lesley. Dr. Lesley will testify on Wednesday, July 24, 2002, from I :00 p.m. until 4:00 p.m. regarding the District's compliance with Revised Plan 2.6 (as it relates to advanced placement courses) and Revised Plan  2.6.1 and 2.6.2. Dr. Lesley is the Associate Superintendent for Curriculum and Instruction for the District. Dr. Lesley will testify that the District's efforts to increase African-American enrollment in advanced placement courses and to ensure their success in those courses begins as soon as they enter the District. In this regard, Dr. Lesley will review the latest results from the K-2 reading assessments (the third year of the program 's implementation and the third year of testing data); describe a recent study Page I of 8 conducted by a team in her Division on the academic effects of participation by AfricanAmerican students in the District's pre-kindergarten program for students now in grades K-8 versus the scores of African-American students who did not participate; describe the new grants that have been awarded to several elementary schools to support their school improvement efforts, especially in reading/writing literacy; discuss the results of the State Benchmark examinations for grades 4, 6, and 8 (if available by the hearing date); discuss the District's new writing curriculum for PreK-12 (which will be ready by the time school starts in fall 2002), its goals related to improved student achievement at all levels, and how it is aligned with the State's curriculum standards and the knowledge/skills required to perform well on the ACT. Dr. Lesley will also discuss efforts undertaken by the District specifically at the secondary level and the results achieved by the District so far. In particular, she will summarize the results of two studies related to the District 's advanced courses at the secondary level; discuss the section on \"Advanced Placement Courses\" on p. 36 of the Compliance Report of March 2001-the summary of activities that resulted in the improved enrollments; describe the District's partnership with the Southern Regional Education Board in the implementation of the \"High Schools that Work\" framework for high school reform, especially the emphasis on all students taking a rigorous program of study, including college preparatory courses in the core areas; describe the trend/research for high schools to admit more and more non-traditional students to advanced courses and the benefits derived from those changes in practice, including improved test results, improved ACT scores, improved performance in college, etc.; review the NAACP's \"Call for Action in Education,\" and compare the NAACP's recommendations to the District's efforts; and describe a study that she conducted on class size at the middle and high school Page 2 of 8 - - ---- levels, including the percentage of small classes that are advanced classes and the percentage of African-Americans who were enrolled in all classes under 20. Dr. Lesley will also update her testimony from November 2001 related to how she sees the District continuing to improve in the next several years. The District's efforts must also be consistent with the requirements of the new federal \"No Child Left Behind\" legislation. Accordingly, Dr. Lesley will explain the District's plan for implementing these new requirements and responding to the new accountability requirements, including the support for low-performing schools. During her testimony, Dr. Lesley will also address the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Dr. Lesley may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. 2. Dr. Marian Lacey. Dr. Lacey will testify on Thursday, July 25, 2002, from 10:00 a.m. until 11 :00 a.m. regarding the District's compliance with Revised Plan 2.6 (as it relates to extracurricular activities) and Revised Plan 2.6.3. Dr. Lacey is the Assistant Superintendent for Secondary Schools for the District. Dr. Lacey will testify that the Board adopted policies JB, JBA, JBA-R, JJ, JJ-R, JJIA, JJIB, JJIB-Rl, JJIB-R2, and JJIB-R3 in order to comply with Revised Plan  2.6; that the District increased participation in extracurricular activities 76 percent in the 1998-99 school year and another 26 percent in the 1999-2000 school years; that 62 percent of African-American students participated in extracurricular activities during the 1999-2000 school year; that the number of African-American students participating in co-curricular activities increased 9 percent in the 1998-99 school year and an additional 30 percent in the I 999-2000 school year; that a 1999-2000 parent survey indicated that 90 percent of African-American parents and 93 percent of African-American teachers thought that activities Page 3 of 8 were open to all students; that the SIP program has helped increase African-American participation in activities; that transportation is provided for all extracurricular activities; that the Activities Advisory Board has begun functioning; that the District has hired Danny Fletcher, an African-American, as Fine Arts Director; and that she is not aware of any barriers to participation by African-Americans in extracurricular activities. During her testimony, Dr. Lacey will also address the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Dr. Lacey may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. 3. Jo Evelyn Elston. Ms. Elston will testify on Thursday, July 25, 2002, from I :00 p.m. to 2:00 p.m. regarding the District's compliance with Revised Plan  2.11 and 2.11.1 . Ms. Elston is Director of Pupil Services for the District. She will testify that during the term of the Revised Plan the District adopted policies JB, JBA and JLD; that counselors assist students with their educational, social, personal and career development; that each school conducts a needs assessment every three years and develops a school-based guidance plan; that the District has developed a comprehensive guidance program plan for both the elementary and secondary level; that counselors prepare monthly reports on their progress in implementing the guidance plan; that counselors are to keep a daily log of students counseled; that counselors have been instructed to encourage students to take pre-AP and AP courses; that counselors have attempted to ensure equity in honors, awards and scholarships; that counselors regularly prepare newsletters to notify students of scholarsh.ip opportunities, ACT preparation courses, etc.; that counselors provide all students with a written graduation plan; that secondary counselors prepare annual reports; that her office monitors both the monthly reports and annual reports prepared by counselors; that the Page 4 of 8 data on enrollment in pre-AP and AP courses, scholarships and honor graduates suggests that the counselors are doing a good job; that a 1999-2000 parent survey indicates that counselors are doing a good job; that the Safe School Health Students grant has allowed the Pupil Services Department to provide additional services to students; and that she is not aware of any systemic racial discrimination in the provision of guidance and counseling services. During her testimony, Ms. Elston will also address the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Ms. Elston may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. 4. Sadie Mitchell. Ms. Mitchell will testify from 3:00 p.m. to 4:00 p.m. on Thursday, July 25, 2002, regarding the District's compliance with Revised Plan  2.6, 2.6 .2, 2. 6.3, 2.11 and 2.11 .1. Ms. Mitchell is the Associate Superintendent for School Services for the - District. She will testify that the District has adopted the Total Quality Management philosophy and the principles underlying that philosophy; that the District has been awarded Quality Interest Award and Quality Commitment Award; that Campus Leadership Teams play an important role in school improvement; that the District has provided extensive training to make Campus Leadership Teams successful; that each school develops a school improvement plan each year, focusing on improving achievement in literacy and math; and that an important part of the District's strategy for improving achievement of African-American students is encouraging more African-American student to enroll in more rigorous academic courses. During her testimony, Ms. Mitchell will also address the District's good faith commitment to comply with the Constitution even ifno longer monitored by the Court. Ms. Mitchell may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. Page 5 of 8 5. Dr. Ken James. Dr. James will testify on Thursday, July 25, 2002, from 5:00 p.m. until 5:30 p.m. regarding the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Dr. James is the current Superintendent of the District and has held that position for one year. Dr. James will testify that he supports and intends to follow District policies which require compliance with the Constitution and federal civil rights statutes. Dr. James will also discuss the District's partnership with the Southern Regional Education Board, its implementation of the \"High Schools that Work\" framework for high school reform and the importance of students taking a rigorous program of study. Dr. James may also offer testimony responsive to evidence offered by the Joshua lntervenors during their case. 6. Baker Kurrus. Mr. Kurrus will testify on Friday, July 26, 2002, from 9:00 a.m. - until 10:00 a.m. regarding the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Mr. Kurrus is President of the District's Board of Directors. Mr. Kurrus will testify that the Board adopted and/or re-adopted policies during the term of the Revised Plan requiring compliance with the Revised Plan, Constitution and federal civil rights statutes; that every policy was adopted after being read at a prior Board meeting; that the Board fully expected the administration to comply with its policies requiring compliance with the Revised Plan; that the administration reported to the Board that it was complying with the Revised Plan; that a representative of the Joshua Intervenors was permitted to address the Board whenever requested; that in the 1998-1999 school year, the Board had 23 meetings and no representative of the Joshua lntervenors addressed the Board; that during the 1999-2000 school year, the Board had 20 meetings and a representative of the Joshua Intervenors appeared on July Page 6 of 8 22, 1999 and November 10, 1999; that at the July 22, 1999 meeting, attorney John Walker raised only general concerns; that the Board understood that the Superintendent worked with the Joshua Intervenors to address those concerns; that on November 10, 1999, attorney John Walker appeared to support parents and community members opposed to the closing of Mitchell Elementary School; that the Board agreed not to close Mitchell Elementary School; that during the 2000-2001 school year, the Board had 27 meetings, and the minutes reflect that Joy Springer appeared on behalfofthe Joshua Intervenors on January 25, 2001; that on that date Ms. Springer stated that improvements had been made, that there were still some issues to be addressed and that the Joshua Intervenors were hoping to work with administrators and the Board to address those issues; that the Board understood that the administration attempted to work with the Joshua lntervenors to resolve those issues; that the Board expected the Joshua Intervenors to raise in a - timely manner any compliance issues which could jeopardize the District obtaining unitary status, either with the Board or pursuant to Revised Plan  8; that the Board agreed to pay the Joshua Intervenors in advance to ensure Joshua's ability to monitor the District's compliance; that Joshua billed the District for monitoring, and the District paid those bills; that the Board never had any evidence presented to it that the District had not substantially complied with the Revised Plan; and that the Board adopted the Covenant to demonstrate and memorialize its good faith commitment to the Revised Plan and the Constitution in the future. Mr. Kurrus may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. Page 7 of 8 Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Christopher Heller (#81083) John C. Fendley, Jr. (#92182) FRIDAY, ELDREDGE \u0026amp; CLARK Regions Center, Suite 2000 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 BY!fjflzt1~- C. Fendley,Jr. CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by U.S. mail or as otherwise indicated on July 10, 2002: Mr. John W. Walker JOHN W. WALKER, P.A. I 723 Broadway Little Rock, AR 72201 (hand-delivery) Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 F \\HOME\\FENDLEY\\l..RSD 2001 \\dcs-uniwy-wimcss-list- 7-22-02-revised.wpd Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 J~\u0026lt;=.F'endCley, fr -~ Page 8 of 8 RECEIVED UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS u r-:,S~ll; RRT EASTERN DISTRICT ARKANSAS 600 W. CAPITOL, ROOM 423 JUL 1 5 2002 OfFICE OF DESEGREGATION MONITORING LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 BILL WILSON JUDGE Mr. Christopher Heller Mr. Clay Fendley Facsimile (501) 604-5149 July 11, 2002 LETTER-ORDER BY FAX Mr. John Walker 400 West Capitol Avenue, Suite 400 Little Rock, AR 72201 1723 South Broadway Little Rock, AR 72206 Mr. Samuel Jones, Ill 200 West Capitol, Suite 2200 Little Rock, AR 72201 Mr. Richard W. Roachell 11 800 Pleasant Ridge Road Little Rock, AR 72222 Mr. Dennis Hansen 111 Center Street, Suite l 200 Little Rock, AR 72201 Re: Little Rock School District v. Pulaski County Special School, et al. 4:82CV00866 Dear Counsel: The filings yesterday appear to meet most of the requirements of paragraph 3 of the May 15 order. Joshua does need to file -- today -- a detailed statement of the expected testimony of their two rebuttal witnesses. It appears that Joshua has provided the exhibits referenced in LRSD's Motion in Limine. Joshua's filing of July 8 indicates that the testimony of Ms. Mitchell and Mr. Babbs will not be duplicative -- and the questioning of each witness will only be for ten minutes. It appears that Joshua has removed some of the \"rebuttal\" exhibits listed earlier. I will take a look-see at the other exhibits at the hearing which commences at 8:30 in the morning, unless LRSD concedes that Joshua's response renders those remaining relevant for rebuttal. LRSD v. Pulaski County School District July 11, 2002 Page Two Joshua indicates, in its July 8 pleading, that it does not intend to question Messrs. Mosby and Carter regarding their recent removal as principals. As long as the questioning of these two witnesses (as well as all the other witnesses) relates only to the three remaining issues, there should be no problem. Back to Joshua's two rebuttal witnesses. LRSD argues that they can't provide true rebuttal testimony, but I cannot rule on this point until I see the detailed summary of their expected testimony -- which, as noted above -- must be filed today. Turning now to Joshua Exhibit 767-776, 791 (Ms. Springer's letters). First off, let me state that I will not apply Monell in this case. That 1978 case, involving a Section 1983 complaint, is not applicable in school desegregation cases, in my view. The LRSD's objection to my ruling on this point is denied, and its exception is saved. I now quote from Joshua's July 8 filing with respect to these exhibits: The Joshua intervener should have the opportunity to seek the authentication of pages 2 and 3 of Exhibit 791, dealing with guidance, by the testimony of Junious Babbs and Sadie Mitchell . I will have to be more fully advised in the premises, during the hearing in the morning, as to the exact meaning of the above-quoted paragraph. Joshua's July 8 filing also indicates that these exhibits are offered to show \"notice.\" I assume that this means that Joshua is not offering them to prove truth of the contents. If this is correct, it removes the statements from the definition of hearsay, and I must turn to the question of whether \"notice\", in this manner, is admissible, and, if so, under what theory. In view of my ruling, above, on Monell, I see no reason to go further with respect to LRSD's \"relevance generally.\" I can't put my finger on the objection right now, but, as I recall, LRSD objected to Joshua's designation of LRSD's exhibits as Joshua's exhibits too. If I recall the objection correctly, it is overruled, and LRSD's exception is saved. While courthouse lore is often contrary to established law, it has been the practice of trial lawyers in this state, since the mind of man and woman runneth not to the contrary, to designate the other party's exhibits as their own. LRSD contends (again, as I recall it) that this designation is contrary to some provision in the May LRSD v. Pulaski County School District July 11, 2002 Page Three l 5 order. If that order prohibited this specific designation, I'm going to ignore that particular portion of the order (in this context). If there are other issues that should be addressed in the morning, I would be much obliged if the parties would send Judge Ray and me a fax today identifying those issues. Thank you. ci!il~ Wm. R. Wilson, Jr. cc: The Honorable J. Thomas Ray Original to the Clerk of the Court RECEIVED 9N1110llNOW NOllYD3\\193S30 JUL 1 s 2002 United States District Court ~033wo --::aor--______EA_ ST_ER_N_ __ DlSTIU~rr _ ARI\u0026lt;ANSAS ZOOZ 8 1 1nr - OFACEOF T TTT: r: Rnr'f(Fcltm~~SION rnE ii.R~Ilg~~OM~E~~cr EAST~r1f.Pc1STAICT ARK'lTNSAs ~~~jl:I JUL 1\"' 1 2002 LASKI COUNTY SPECIAL SCHOOL DISTRICT, et a!.MES W McCORMACK, CLERK CASE NIBvffiER: 4 : 82CV008, ,_..,.,. 1--:- . B~: DEP. C[ERKI --  TnO~L'\\S R..~Y Christopner Eelle:::-, et al. Sam Jones, et a1. u!v\" 9, ?QQ? \\ ~a'fi,1.yn Fant \\ FsF Swapsol! . - - x~ 7-~-i;: - ' :x ~~b ~ I I ::x '/ Yip I I ex 'JtP \\ \\ \\ I \\ ~ 4S \\ \\ \\ I \\ I ex 1 5,) I ( I I I ex '757 I l I I I ex 153 I \\ I I I 1 cxt~ I ) \\ \\ \\ ~,si; I I I I . . $:~~;ot;;,ff'g;_\\vc.~ ~o' l~-r1'14\"~ ~ Tu-14-eo r ~ ~ -/2, ~ ~-a {~ ~qo) (-~ ~ 0'1-;;;i...q-ot ~ _,, ~\u0026lt;;J.\u0026amp;,.._ . hw--,.._-ft ~ H-% tL,v/., ~,~-t ~7-.J.-O ;,' . /07) I t-~ ~ I I - I le -oo ~~ ~ ~ 'To \\~~ I c;__ - mi:iJ_ cue~ 03 -01 -o 1 0 . 1-l T ~ 0-,ui_ /14 w....;t cf.d_-fa, C:3-07-D( (l.f:/)..'i/11-f .f'(i/4 ; I It,, ::..n,._d.J.. clLW D 7-b--ul (rfJr.ri - -le l liJ(),\\J. (h.ti_ - ~ ~ D7-11p-ot {. g~ 1 (-r,,..\u0026amp;.l I.,~ o\u0026lt;o-~g--01 c,:o\u0026lt;:sa..-f'r\u0026lt;- F H~ ~ -fc o-r,J2.-n4,..;,2 ,~ ~ ~I ( P. tq;;\u0026gt;. tL.d /q 3 \\ u cv ~ :J ;o United States District Court ________E_ AS_TE_RN __ DtSTIUCT OF --:::-=:ARKAN==-~SA~S _______ I T TTTJ 'C' Barz DIVISION [T ROCK SCF.OOL DISTRICT EXHIBIT LIST ULASKI COUNTY SPECL~L SCHOOL DISTRICT, et al. CASE NlJ11BER: 4: 8 2CVOO! J:-iHO~L\u0026gt;\\S RAY I ..._,...Ch:-   11 al  1-- r1.stopne= J::ie_ er, et . Sam jones, et al . .!u!v' 9, 2002 l.aTI,1yn Fant I w;; Swapson ex 7 rsr; '!- '1-0 ~ -~ cl.t:rfu- oq-.).q-oo ~ ~ ~ ~ / K~ -~ IU:P~ ;;Jboo-O~ CR _57) I I ~ -riutJ- d,i.,# 10 - 3-00 ~ ~, e~ ~ ~ k - ~ ~ -'Alt ~1--~ ( A @J I 0 l I\\ I I I I ( - h\\._~  Q -I~ ~ I 3 - if I  I rJ.-.,J. Ca:~ c.~ 1q ') I .f\\ - ;.. United States District Court -----------=EA:..:..::.S.;::.;:TE=RN_ __ DtSTIUCT OF ARKANSAS  I TTTT ,:- Rory --;:;D~[V~IS~I07-;\"N~-------- [T ROCK SCP.COL DISTRICT EXHIBIT LIST ULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al. CASE IBJMBER: 4: 82CVOOl T\"\"'nfmL-\\S RAY 1-- 1-- Chriscophe-:- Eeller, et al. Sam Jones, et: al. Ju!v\" 9, 2002 \\t'arcilyn Fane \\ :acf'\"\" 5 . . . . - -   ~--~v  wapson \\cx'Y7(p \\ \\ \\ \\ \\~ ~ Ofv-07-06 ~ ~ il\u0026gt;~1  ex 117 I I I I 1e~ /k ~:;;~-OI United States District Court -----= ______ E_AS_TE_R_N __ D1STR.ICT OF -~ARK.!~!\\N:7SA~S ______ _ - I TTTJ ,:- :gnrx DIVISION ITTLE ROCK SCROOL DISTRICT EXHIBIT LIST ULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al. CASE N\"'illvffiER: 4: 82CVOO! Ju!v\" 9, 2002 I \\ \\ ex 1ero  I I ...-.... ......... Christopher Eeller, et al. I. t:\"a'fp1 yn F an_t I,__ Kathv s~apson I I I I (-;y...r,i,__,t ~ 09-3o-CO - ~ c=r-c..,, __ -/TJ ~ -ak h{Jz;,/.4- t..,\\ ~ I I I I I I I I I I I I I I I I I I I I I I I I \\ \\ I I I I \\ I ~  1 - ~~ Ct4\u0026lt;M..e. - I ~v-Q_ e,o ~d-'7t j ~ ~ 68-04--Cfq ~ ~ rn~ I] United States District Court ~-------E_A_ST_ER_N ___ D1Sn.ICT OF --=::-::ARK.!::::!\\N:::-:S-;-A_S ______ _ - I TTTT -c- pnry DIVISION .ITTLE ROCK SCHOOL DISTRICT I. 'ULASKI COUNTY SPECL~L SCHOOL DISTRICT, et al. , rnfmL~S RAY I I ........, __ Christopher Eeller, et al. mtv\" 9, 2002 \\.t\"a'fl\u0026gt;1.yn Fant I I I I I I I I EXHIBIT LIST CASE NIBvIBER: 4: 82CVOQ. ~  I . I United States District Court ________ EA_ST_ER_N __ D!STRICT OF_~ARKAN==SA;.:;....S ______ _ - I TT.,..J\"\" :gnrK D[VISION ~ITTLE ROCK SCP.COL DISTRICT EXHIBIT LIST V. PULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al. CASE NillvIBER: 4: 82CV0C 1:--THOK!\\.S RAY \\ 'chr'i';;opher Heller, e't al. \\ 7a:j;nes, et: al. ex \u0026lt;lO / I I I -pG.A.k~..J ~ ~ ~ ~1~ I l ~, 7_;);).-:,btl~ 7-~-557'6 United States District Court ___. ,..___ _____EA _S_TE_RN __ DlSTRlCT OF --=-::-ARKAN~_;;,.;.SA~S _______ - I TTTJ, ROCK DIVISION CTTLE ROCK SCHOOL DISTRICT EXHIBIT LIST ULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al. CASE NUMBER: 4: s2cvooc T\"\"'fiim-L'\\S RAY \\ 'chr':i';;opher Heller, et al. I ~-~nes, et al. J,....u .1. \" 'v\" 9, 2002 1--\"+ F 1---  1.,ar.9.1.yn an~ Kathv \u0026lt;;wapson ex?; / 3 ~-1-0;).. J!.P.W f-lciB.,Zv().(.d' -~ =-t-14 -t-u~1 9~J~ooo (,--;;i ct- 01qq1,;1. -j-T) /-;).f-0111,;iq. I I J/.d-,0--0 ro ;1.1esc/~ ~ t -c) -DICfl :\u0026gt;.~ I -)f-ol C/ '1~) I I rf..R.. SJ) ~~\"--\" ~~\"'\u0026lt;..LO- t/-l';;l - !'119- 'd{JO() {1--~-K-o/CjCJQ;, ~ /~)(-cJ/19(:;q) 1 I I I I 1:- ~ \"'4'.P / '\\,U,VTI\\J/ ~t:\u0026lt;19 _ g 17 \\ \\ \\ \\ \\ P~~vt- ~Cll.Ad   1 I I I . l ~-4 . iqqq(l-~-DI . United States District Court ~-------EA_ST_E_RN ___ DIS'TRICT OF _-::-:-:'-ARKAN~-:-:-SA_S ______ _ - I TTTT -c- BOrK DIVISION LTTLE ROCK SCHOOL DISTRICT EXHIBIT LIST ULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al. CASE NUMBER: 4:s2cvoo1: J:-iHOI:La\\S RA.Y I ~i-;;opher Heller, et al. I ~-'j;nes, et al. Ju!v' 9, 2002 l.ra'fp1.yn Fant I w~ Swapsop United States District Court __________EA_ ST_E_RN_ __ DISTIUCT OF -~ARK.!~~~SA_S_ _______ - I TTTJ i:- BOrK DIVISION :TTLE ROCK SCP.COL DISTRICT EXHIBIT LIST JLASKI COUNTY SPECL~L SCHOOL DISTRICT, et al. CASE NlJrvfBER: 4:82CV008 Ju!v\" 9, 2002 \\ :C-a~'lyn Fan~ I w~ Swanson ex Mo I \\ex '6ltq \\ ~~ i;-D I I I I I I I I I I I I I I I I I - I I I I \\ \\ I I I I I I 11--R..SD ~Z\u0026gt; -ot ~~ ~ e  (1-:).\u0026lt;;i\"'-oJo3~ --fo f-:\u0026gt;-f-6)031./7) l'J'l'L . :/S~ Ct -:\u0026gt;-i ..... Q d-0 iJL/::;;. 71\u0026gt; I- d-\u0026lt;t-Od-() c.;9) United States District Court __________EA_ ST_ER_N_ __ DlSTRlCT OF --=::=:ARKAN~~SA~S _______ - r TTT'J ,:- B/\"\\rT\u0026lt;\" D1VISION ITTLE ROCK SCHOOL DISTRICT EXHIBIT LIST lTLASKI COUNTY SPECIAL SCHOOL DISTRICT, et al. CASE N\"'U1v1BER: 4: 82CV001: r:-'fRO!:-LA.S RAY I 'chr'i';;opher Heller, et al. I s:;j';;'nes, ec al. .ru!v' 9, 2002 l.'.Ca'fp1.y:n F~n.t I FsF Swanson ~ sr;;-\\ ~g, I ! ! I I Im vT ~..-. DI ( t -- -;;;.. f_ o){Jb{i.  --/-\u0026lt;iJ /-\";;).f-c~O\u0026amp;:J/';;}. I 1, '\\ I~ ~  ~ P~ \\ c?.06 r - ').Do ::i. (r --;}. F '-0 ::i. o~ 'gC/7zJ I-';) ?-o~t) 77;) ex g Go I I . I 1~ ~ -  ,~ ~o~ ex '6l, ( \\ ) \\ \\ \\ \\ ~ tJ HD -1 f ' b -~;;J- 6'/-3'{ -r,, 7~ ';,;;). _,;11d 1 \\ ( \\ \\ \\ \\ t\u0026lt;.. itL,tr ~ vth~::2. ( 1 cx ~ (,)- \\ . I ~J;;;ff:LI 1 g ..-- l-0, ~ (7- -;; - [;l/l/D lD 7 - ;;;-;;) - X q, 6 3 I . / I I I I ~ ' 7  ~If!!_ ( c).COC  i~4 I \\ I I I 1~ ~7-~-m1/fe7-?2-w1J United States District Court --------E-ASTE-RN ---DISTRICT OF ARKANSAS I TTII 't\" BOrK DIVISION [T~ ROCK SCHOOL DISTRICT EXHIBIT LIST ULASKI COUNTY SPECIAL SCHOOL DISTRICT, et al . CASE NUMJ3ER: 4: 82CVOOE .i-:-firo-t-Lt\\.S RAY \\ 'chr'i;;opher Heller, et: al.. \\ ~~nes, et al. Ju!v' 9, 2002 luTI,1yn F.ant I wF Swapson I I I -I I I I I I .. - I I \\ I I I I I I I ex I I I I I I I I -I I I I I I I I I I I  I I I I I RECEIVED - JUL 2 .. 2 2002 OFACEOF DESEGREGATION MONITORING u.fo lbf cPuRT IN THE UNITED STATES DISTRICT CO~ERN DISTRICT ARKANSAS EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION JUL 1 8 2002 JAMES W McCORMACK, CLERK By: ----~D::-:E\"\"'P.\"\"\"c\"\"\"'Le=A-R LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. DEFENDANTS MRS. LORENE JOSHUA, ET AL. INTER VEN ORS KA THERINE KNIGHT, ET AL. INTER VEN ORS ORDER 1. My May 15, 2002 Order read, in part, as follows: 4. In addition to exchanging exhibit lists, each party must exchange pre-marked exhibits on or before June 21 , 2002. Any exhibit that is not pre-marked and exchanged on or before June 21 , 2002, will not be received into evidence during the July 22 hearing, absent highly unusual circumstances. (Emphasis added.) 2. In a letter dated July 16, 2002, Mr. Walker enclosed seven proposed rebuttal exhibits. I will deal with them one by one. 3. CX 599 has been previously identified by Joshua and, absent a specific objection, will be admitted. 4. A Bonnie Lesley July 27, 2001 e-mail to Ms. Anne Brown (Marshall) was not - - - - - ----- - - - - -- - - - - - identified and marked prior to the June 21 deadline, and will be excluded. 5. A copy of the cover sheet for the Office of Desegregation Monitoring, which is entitled \"Report on the Little Rock School District's Preparations for Implementation of its Revised Desegregation and Education Plan,\" dated August 11, 1999. I assume, but do not know, that Joshua plans to introduce the entire report, although nothing but the cover sheet was provided in the letter. In any event, it violates the deadline set forth above and will be excluded. 6. Ms. Bonnie Lesley's February 21, 2000 letter to Ms. Anne Brown regarding \"recent LRSD publications.\" It will be excluded for the same reason.  7. A letter dated April 13, 2000, from Ms. Anne S. Brown to Dr. Bonnie Lesley acknowledging receipt of Ms. Lesley's February 21 , 2000 letter and attachments. It will be excluded. 8. Ann Brown's April 25,200 memo to Bonnie Lesley regarding \"feedback on LRSD Curriculum Documents.\" It will be excluded. 9. The Office of Desegregation Monitoring's October 26, 1999 \"Achievement Disparity Between The Races In The Little Rock School District.\" This will be excluded. 10. In the last paragraph beginning on the first page of Mr. Heller's July 17 letter, he requests that Mr. Walker be required to identify, by page and line number, the testimony of Dr. Lesley, which renders the rebuttal testimony of Ms. Marshall and Mr. Jones necessary. This is a fair request, and I normally would require it if time were not so short. I do note that Mr. Walker has only thirty minutes, total, for rebuttal. 11 . In the first full paragraph of Mr. Heller's letter dated July 17, 2002, which begins, \"in its Motion in Limine ... \" LRSD objects to the reading into evidence portions of the -2- depositions of certain Board members. With the exception of Dr. Karen Mitchell's testimony at lines 13-23 on page 27, all of remaining designated deposition testimony relates exclusively to the issues of academic achievement and program evaluations which are not among the issues which will be addressed during the hearing beginning on July 22. The objection is sustained. 12. In view of the sustaining of the objection, in the next preceding paragraph, the remainder of Mr. Heller's letter is moot. IT IS so ORDERErH DATED this / B day of July, 2002. -3- THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WlTf: ~UL7 58 ANO/OR 79(a) FRCP ' 7//9/tJ~ ~ 07/18/2002 11:16 5016045149 PAGE 02 RECEJVED JUL 2 -2 2002 OFFICE OF DESEGREGATION MONITORING FILJ:D : U.S. DISTRl~COURT  EASTERN DISTRICT ARKANSAS JUL 1 8 2002 STATE OF ARKANSAS JAMES W McCORMACK, CLERK OFFICE OF THE ATTORNEY GENEME----=..,,_.,.;._ oJiliP~ Deputy Attorney G\u0026lt;m~l Civil Department Direct dial: (BOI) 682,2586 Mark Pryor Attorney General R~~tr,s July 17, 2002 ... _,,~ The Honorable William R. Wilson . J. a~j (U?\"'w:U;_ ~1:~~ Jr. United States District Court ~nO ~~~ '(/ uE.t. ~~sx;~~~~g~e 600 West Capitol, Suite 423 11) : ~ Little Rock, AR 72201 RE: Little Rock School District v. Pulaski County Special School District, et al. Case No. 4:82CV0866WRW/JTR Dear Judge Wilson: oiC  ~ \"f!:11-(0)- eneral, counsel for the Arkansas Department of Education in the above-referenced matter, es ec y request that we be excus from the final evidentiary hearing on the Little Rock School Distnct s otlon or m ary tatus set to begin on Monday, July 22, 2002. The presentation of evidence by Joshua and the Little Rock School District on the remaining issues does not appear to require our attendance at the hearing and we do not intend to examine witnesses or otherwise participate. Thank you for your consideration of the foregoing. c=~~ DENNIS R. HANSEN Deputy Attorney General DRH/km cc: The Honorable J. Thomas Ray Mr. Christopher Heller Mr. SamuelJones,III Mr. Richard W. Roachell Mr. John Walker Ms. Ann Marshall Mr. Steve Jones Original to the Clerk of the Court 323 Center Street  Suite 200  Little Rock, Arkansas 72201 (501) 682-2007  FAX (501) 682-8084 Internet Website http://www.ag.state.ar.us/ Q :\\Civi1\\DenniaHldeeeg\\2002\\Con-espondcnce\\judgeltt07-l 7 .doc JUL.19.2002 10:36AM Ja-!N W W~KER P A N0.732 P.2 na:\\;flVEu - JUL 2 2 2002 OFFIC~ OF n ,:.:( .l! '/1\"~\"  \"\" I~IO NITORING JOffNW. WAt,Klm . SHAWN CH1LD8 Honorable William R. Wilson United States District Jlldge 600 W. Capitol Suite 149 Little Rock. AR 12201 JoHNW. WALKER,P.A. u Ff LS::D .s. DISTR1\u0026lt;!'rcou M:TOBNXT kt LAW EASTERN DISTRICT RT 1723 B'RoADWAY ARKAN SAS Lrm\u0026amp;Rocx,ARKANSAB 72206 JUL 1 9 2002 TELEPS'ONE (501) 374-3758 FAX (501) 814-4187 JA_M~~q5M , Sy, -,~~aw;..~,~C~LERK~ . T MOcHFECNORUYN PiE.AL. , _ DONNAJ. ~y VI.a Facsbnile: 604--5149 July 19, 2002  8210 HIMl'l!SON BoAD 14:rrt,\u0026amp; Roc:x. ~ 7l!l!l0 PROm: (501) 11n-3426  Fax (501) 372,M28 EliWl-~bell.net 7 l -- ct_..\u0026lt;!L ,. h , . ~))4 \"~ f l)f il)UI-~  ~ dra'I' ~lA lA'L  ~ \u0026lt;J r ) i: CA V\\11 L  _A _1t ,i.,VII\\ ~ ,-A,1/~p ))\\f I , ~,t.\u0026amp;_ ~;;-.;, ,, u9--1 ) _,d.Jfo/'f .A ~ !-+Iv'' \u0026gt;;f/i u C~----aJfl--\\ ~f~i,ll 1 ~l ..,_;;,a,Lv--' i),L{ . ~{' ~'':' 1:,,t--\u0026amp; 1#..\"' v-.\u0026lt;1-Y,~J:v ~1,\u0026lt;, I ,. -~--;\";j))}-tL ffed: ,e-. Y:,. i,..1L '10   1i '\\ tJ,'.Jl.-.- if J?,1 ,uA-a.t.--.;(,~{# ~ '?r.,,/,'P-\" v\" Ct ~ 1'.-c11~u~ Dear Judge Wilsoll! \\,Vw-,.-v' .,/4A, J;-{,t,Jul- \\,~A.A. ~t.U: '  IJ\"'\"t/' One of the witnesses that we listed Ms. Ethel Dunbar~ Principal of Franklin ElementarY  , pit.Q.,,( School has been subpoenaed for the 8,30. July 22, 2002 hearing as directed by the Court. She ;,(c.' (J)l)-M has called me to ask excuse from being present at 8:30 due to State Department of Education }- business at that time. She is scheduled to appear 8$ a witness on Wednesday. I see no probleui n~ L\\. in haVing hor appear on Wednesday other th8n your order. Toe District, l llll1 sure, will alao C'- \"')'. want her exoused if it is also possible. I am therefore writing to request tha1 she be allowed to ., v\"  l..f report on Wedneoda}' momlng, July 24, 2002. ralh\u0026lt;:r than July 22. 2002. ~, \"\"'; Thank you for whatever consideration you may give regarding this request. JWW:lp cc; Honorable J, Thomas Ray Mr, Chris Heller Ms, Ethel Dun.bar 10/10 39'i1d 51,rs RECEIVED JUL 2 2 2002 OFACE OF DESEGREGATION MONITORING UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS 600 W. CAPITOL, ROOM 423 LITTLE ROCK, ARKANSAS 72201-3325 (501) 604-5140 BILL WILSON JUDGE Mr. Dennis Hansen Deputy Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 Facsimile (501) 604-5149 July 19, 2002 BY FAX FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS JUL 1 9 2002 ~~~~ RE: Little Rock School District v. Pulaski County Special School, et al. 4:82CV00866WRW / JTR Dear Mr. Hansen: You may be excused from next week's evidentiary hearing in this case a t - your discretion. cc: The Honorable J. Thomas Ray All Counsel of Record Original to the Clerk Wm. R. Wilson, Jr. RECEIVED Fii ;:~ u ~--.. , EAsrMRsN ?;,ftt1ff co URT ' ARKANSAS f JUL 3 0 2002 IN THE UNITED STATES DISTRICT COURT . JUL 1 r 2~n2 l a_ OFFICEOF 90ESEGREGATION MONITORING EASTE~I;:~c6ii s~NS~:MES w. McCORMACK, CLERK LITTLE ROCK SCHOOL DISTRICT V. NO.-4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO.I, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL MOTION FOR RECONSIDERATION DEP CLE~K PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Joshua Intervenors respectfully request the Court to reconsider its Order of July 18, 2002 which was faxed to us at the end of the business day, yesterday, July 18, 2002. On the day before, July 1 7, 2002, plaintiffs counsel filed a letter with the Comi by fax, also at the end of the business day, wherein counsel made several objections citing authority for one. The Joshua Intervenors were not afforded an opportunity to respond prior to the Court's Order. The Joshua Intervenors, therefore, object to the Court's entry of an Order on a disputed matter without their having been afforded a reasonable response time to the plaintiffs motion. We note that there are only 30 minutes of rebuttal testimony and evidence at issue here. Joshua notes that the positions of the Office of Desegregation Monitoring (ODM) have been considered vital in the previous deliberations during fact finding proceedings. In the past, the Court Itself has invited the ODM to state its findings on matters which it had monitored. That has been the established procedure in this case for its duration. Joshua counsel acknowledges that the transition from one judge to another will result in some changes in the administration of a case; but Joshua believes that it is fundamental that the role of the ODM be preserved not only in operation but in presentation of the facts which it learns during its monitoring. Joshua proceeds now to address the reasons for the motion herein. 1) Joshua communication with Ms. Ann Marshall before June 21 , 2002 and even since then has been difficult due to personal circumstances of Ms. Marshall. Ms. Marshall's personal situation constitutes \"highly unusual circumstances.\" 2) The Leslie e-mail of July 27, 2001 to Ms. Marshall is a document which the Distiict has had for some time. There is no unfair prejudice to the plaintiff for it to be used by Ms. Marshall during her testimony. We submit that the Court's ruling should be reconsidered because it simply identifies ODM documents. 3) The Court excludes the ODM \"Report on the Little Rock School Districts Preparation for Implementation of its Revised Desegregation and Education Report.\" We note that this report is already a pait of the Court's record. It was filed when it was prepared. Please note the file mark of August 1 1, 1999. The cover sheet was submitted simply for reference by Joshua because the Court already has the entire report. I presume, but apologize for presuming, that the Court was aware that this report was already a pait of the record. [See Par. 5, infra.] 4) The Bonnie Leslie letter of February 21 , 2000 has also been excluded by the Court. We object to the Court's ruling for the reason, supra. The District contends that ODM participated in the evaluations that it made. The letter of February 21, 2000 shows that Leslie invited \"feedback for improvement\" or questions regarding the certain curriculum documents rather than for \"evaluations.\" We request that we at least be allowed to proffer the document with a note that Ms. Marshall may surely testify about the contents therein. 5) The Court excluded the ODM Report of August 26, 1999. This, too, has been filed as a matter of record in this case since August 26, 1999. It is not a new exhibit. The Court has had this exhibit before it now for almost three years. I ask the Court to reconsider its exclusionary ruling because the effect of it is to remove an admitted document from the record. [Underlining added for emphasis.] 6) Finally, with respect to the identified testimony of school board members, the Court precludes all but the testimony of Dr. Mitchell at lines 13-27 on p. 27. We feel that the Court should reconsider this ruling because an issue of good faith is also raised with respect to the issues which were before the Court in the first proceeding. For example, Dr. Carnine testified regarding the subjects in issue. His credibility was a clear issue. Dr. Mitchell and Ms. Strickland were asked questions regarding Dr. Carnine's truthfulness to them as board members. We are entitled to show that either they did not consider him credible or that they would falsify a response themselves rather than give a statement of their experiences with Carnine regarding Carnine's truthfulness. Carnine's truthfulness goes to the District's good faith and to the integrity of the evidence recited in the reports prepared under Carnine's supervision in March of 2000 and 2001. Also, please note, Judge Wilson, that the school board members depositions were taken after we had basically concluded our case on those issues before the Court. We could not have presented it during our case-in-chief because it was not then available. Furthermore, the depositions were before the Court as exhibits before the June 21, 2002 deadline for filing exhibits. The cited lines relate to the issue of good faith with respect to good faith, discipline, student achievement and program evaluations. In conclusion, the Joshua Intervenors respectfully request the Court to reconsider its Order and to modify it accordingly. Joshua also requests that if the Court is inclined to make an instantaneous ruling on a motion by the District that the Cow1 afford Joshua reasonable time to respond before entering an Order. Robert Pressman, Mass Bar 22 Locust A venue Lexington, MA 02421 (781) 862-1955 . r, AR Bar No. 64046 ' JOHNW. WALK.ER, P.A. 1 723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) Rickey Hicks, AR Bar No. 89235 Rickey Hicks, P.A. 1 723 Broadway Little Rock, Arkansas 72206 (501) 3 7 4-3758 (501) 374-4187 (Fax) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoin/ ~.ha been \"},:,lf and U.S. Mail, postage prepaid to the following counsel ofrecord, on this day of I  , 2002: I Mr. Clay Fendley Mr. Dennis R. Hansen FRlDAY, ELDREDGE \u0026amp; CLARK Office of the Attorney General 400 W. Capitol, Suite 2200 323 Center Street Little Rock, Arkansas 72201 200 Tower Building Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Sam Jones \\\\TRJGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Little Rock, Arkansas 72201 rvir. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Richard Roachell ROA CHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 JUL 2 2 2002 A OFACEOF  DESEGREGATION MONITORING UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. * * * * PULASKI COUNTY SPECIAL SCHOOL * .I)ISTRICTNO. 1, et al., * Defendants, * MRS. LOREN JOSHUA, et al., Intervenors, KATHERINE KNIGHT, et al., Intervenors, * * * * * * 4:82CV00866 ORDER u.fo1{fm~cRRr EASTERN DISTRICT ARKANSAS JUL 1 :e 2002 i;,~~-1-r I have reviewed Joshua's motion for reconsideration of the July 18, 2002 order excluding - certain documents Joshua recently identified as exhibits for use with their rebuttal witnesses. First, Joshua points out that the Court entered its order without allowing Joshua an opportunity to respond to LRSD's letter requesting the exclusion of those exhibits. While the Court normally allows opposing counsel an opportunity to respond to an issue before ruling, in this case Joshua had clearly violated the Court's May 15, 2002 Scheduling Order that explicitly required Joshua to identify all exhibits they intended to use during the July 22, 2002 hearing -- on or before June 21 , 2002. In light of that undisputed fact, which was the basis for my exclusion of those proposed exhibits, I saw ( and see) no reason for allowing Joshua an opportunity to respond. Second, Joshua points out that a number of the documents have previously been filed in the record. I was fully aware of that fact at the time I entered my order. However, merely because a - --- - - - - - ---- - ---- document has been filed in the record does not excuse Joshua from complying with the May 15 Scheduling Order. It explicitly required them to pre-mark and exchange with opposing counselall exhibits that it intended to use during the July 22 hearing. Under Joshua's interpretation of the May 15 Scheduling Order, they would be permitted to use, as rebuttal exhibits, any of the thousands upon thousands of documents that have been filed in this case during the last two or three years without identifying and exchange those documents with opposing counsel (marked as exhibits) -- as required by this order. Finally, in connection with the excluded deposition testimony, Joshua has construed the remaining issue of \"good faith\" in far too broad a context. The only good faith issue that remains to be tried in this case is LRSD's substantial compliance with its obligations regarding extracurricular activities, advance placement courses, and guidance counseling. To the extent that Joshua desired to use this deposition testimony, which was known to them before the conclusion of the November 19, 2001 hearing, Joshua should have submitted that testimony as part of its case in chief. Since the trial date is upon us, if either side files a motion, at this late hour, an instantaneous ruling is likely if the motion or request is patently meritorious, as it was in this case. For both parties: The chute is about to open -- get your best hold. IT IS SO ORDERED. Dated this 19th day of July, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE o';~9J~J.~; ~~~,o:~ 2 U/f!i;{ [~ U. S. DISTRICT JU~~ UNITED STATES MAGISTRA TE JUDGE J 600 WEST CAPITOL R  THOMAS RAY , OOM 149 LITTLE ROCK, ARKANSAS 72201 PHONE: (501) 604-5230 FAX: (501) 604-5237 FACSIMILE FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS JUL 2 2 2002 RECEIVED JUL 2 3 2002 omcEoF DESEGREGATION MONITORING UNITED STATES MAGISTRATE JUDGE J. THOMAS RAY 600 WEST CAPITOL, ROOM 149 LITTLE ROCK, ARKANSAS 72201 PHONE: (501) 604-5230 FAX: (501) 604-5237 FACSIMILE FROM: \\,..I ~ ,_r\\ - ~ '\\! N't\\ . \\'\\. ~ ' :s Q(\\ FAX No: ~7 4 - L\\ \\ 'o7 / \"3 7lo-2\\47 DA7E: ~ \"'-\\Q 2\\/ 200 2 RECEIVED JUL 2 3 2002 OFRCEOF DESEGREGATION MONITORING RE: ~ ~\\~ '2..2. \\\\~r\\\"A \\..~bb \"' ~ '-s s.:h  No. Ac. ezcv O0 7 _ 2. 7 - D L-- J s,~ PAGES: {ji_JJ,/\\. ~~: } ~vn1.12 J N-'/;\" ~ ,zf:;u- lf!J,V; O-A,J) ~I\\ 1), ~ /_,M-.(,;_p f-t\u0026amp;.w-J!{ 1M.e_ u,_/,,c6i (\\_ ~~ i~!J)_ 1 ~ ,vy\u0026amp;,.~r (a~ tt%/J  ,~A.Vi.,i,\"-'i.t..J J,f.#.,T waf k lJ.bl} tf--l-L/v4J / ,u. ' ~ 1 ,y-JrJ-i {}/wv1.-' 06V1.,l7f-fQ1::;1 . ri 1~. ~ l\u0026lt;.c ~i!l l,vll~ X C : \\../.C1' / ~ 4--(/--r,~ f\u0026lt;-J-,t 1 UNITED STATES MAGISTRATE JUDGE J. THOMAS RAY 600 WEST CAPITOL, ROOM 149 LITTLE ROCK, ARKANSAS 72201 PHONE: (501) 604-5230 FAX: (501) 604-5237 FACSIMILE RECEIVED FROM: 'N~-\"- 'v-J :\\s ~ JUL 2 3 2002 OFACEOF DESEGREGATION MONITORING -FAX ;:.o, 0\\ 4- 4\\~7 / ~llo-Z I '\\7 RE: ~ ::--~ - ?~;- F\"!L %fR1 g,srR,~ D IN THE UNITED STATES DISTRICT CO~T ,srR,cr ~/!:J EASTERN DISTRICT OF ARKANSA~. JUL 2 3 2i sAs WESTERN DIVISION s;MEs w M 'OJ2  ccoRMAc K, CLERK LITTLE ROCK SCHOOL DISTRICT PL V. LR-C-82-866WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED JUL 2 5 2002 OFFICE OF DESEGREGATION MONITORING PLAINTIFF'S WITNESS LIST FOR THE JULY 22, 2002 HEARING AS REVISED JULY 23, 2002 DEFENDANTS INTERVENORS INTER VEN ORS Plaintiff Little Rock School District (\"LRSD\") hereby identifies the following witnesses to be called at the July 22, 2002 hearing and provides a detailed statement of their expected testimony: 1. Dr. Bonnie Lesley. Dr. Lesley will testify on Wednesday, July 24, 2002, from I :00 p.m. until 4:00 p.m. regarding the District's compliance with Revised Plan  2.6 (as it relates to advanced placement courses) and Revised Plan  2.6.1 and 2.6.2. Dr. Lesley is the Associate Superintendent for Curriculum and Instruction for the District. Dr. Lesley will testify that the District's efforts to increase African-American emollment in advanced placement courses and to ensure their success in those courses begins as soon as they enter the District. In this regard, Dr. Lesley will review the latest results from the K-2 reading assessments (the third year of the program's implementation and the third year of testing data); describe a recent study conducted by Page 1 of 7 a team in her Division on the academic effects of participation by African-American students in the District's pre-kindergarten program for students now in grades K-8 versus the scores of AfricanAmerican students who did not participate; discuss the District's new writing curriculum for PreK- 12 (which will be ready by the time school starts in fall 2002), its goals related to improved student achievement at all levels, and how it is aligned with the State's curriculum standards and the knowledge/skills required to perform well on the ACT. Dr. Lesley will also discuss efforts undertaken by the District specifically at the secondary level and the results achieved by the District so far. In particular, she will summarize the results of two studies related to the District's advanced courses at the secondary level; discuss the section on \"Advanced Placement Courses\" on p. 36 of the Compliance Report of March 2001 - the summary of activities that resulted in the improved enrollments; especially the emphasis on all students taking a rigorous program of study, including college preparatory courses in the core areas; describe the trend/research for high schools to admit more and more non-traditional students to advanced courses and the benefits derived from those changes in practice, including improved test results, improved ACT scores, improved performance in college, etc.; review the NAACP's \"Call for Action in Education,\" and compare the NAACP's recommendations to the District's efforts; and describe a study that she conducted on class size at the middle and high school levels, including the percentage of small classes that are advanced classes and the percentage of African-Americans who were enrolled in all classes under 20. During her testimony, Dr. Lesley will also address the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Dr. Lesley may also offer other testimony responsive to evidence offered by the Joshua Intervenors during their case. Page 2 of 7 2. Dr. Marian Lacey. Dr. Lacey will testify on Thursday, July 25, 2002, from 10:00 a.m. until 11 :00 a.m. regarding the District's compliance with Revised Plan  2.6 (as it relates to extracurricular activities) and Revised Plan  2.6.3. Dr. Lacey is the Assistant Superintendent for Secondary Schools for the District. Dr. Lacey will testify that the Board adopted policies JB, IBA, IBA-R, JJ, JJ-R, JJIA, JJIB, JJIB-Rl , JJIB-R2, and JJIB-R3 in order to comply with Revised Plan  2.6; that the District increased participation in extracurricular activities 76 percent in the 1998-99 school year and another 26 percent in the 1999-2000 school years; that 62 percent of AfricanAmerican students participated in extracurricular activities during the 1999-2000 school year; that the number of African-American students participating in co-curricular activities increased 9 percent in the 1998-99 school year and an additional 30 percent in the 1999-2000 school year; that a 1999- 2000 parent survey indicated that 90 percent of African-American parents and 93 percent of African- - American teachers thought that activities were open to all students; that the SIP program has helped increase African-American participation in activities; that transportation is provided for all extracurricular activities; that the District has hired Danny Fletcher, an African-American, as Fine Arts Director; and that she is not aware of any barriers to participation by African-Americans in extracurricular activities. During her testimony, Dr. Lacey will also address the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Dr. Lacey may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. 3. Jo Evelyn Elston. Ms. Elston will testify on Thursday, July 25, 2002, from 1 :00 p.m. to 2:00 p.m. regarding the District's compliance with Revised Plan  2.11 and 2.11.1 . Ms. Elston is Director of Pupil Services for the District. She will testify that during the term of the Revised Plan the District adopted policies JB, IBA and JLD; that counselors assist students with Page 3 of 7 their educational, social, personal and career development; that each school conducts a needs assessment every three years and develops a school-based guidance plan; that the District has developed a comprehensive guidance program plan for both the elementary and secondary level; that counselors prepare monthly reports on their progress in implementing the guidance plan; that counselors are to keep a daily log of students counseled; that counselors have been instructed to encourage students to take pre-AP and AP courses; that counselors have attempted to ensure equity in honors, awards and scholarships; that counselors regularly prepare newsletters to notify students of scholarship opportunities, ACT preparation courses, etc.; that counselors provide all students with a written graduation plan; that secondary counselors prepare annual reports; that her office monitors both the monthly reports and annual reports prepared by counselors; that the data on enrollment in pre-AP and AP courses, scholarships and honor graduates suggests that the counselors are doing a - good job; that a 1999-2000 parent survey indicates that counselors are doing a good job; that the Safe School Health Students grant has allowed the Pupil Services Department to provide additional services to students; and that she is not aware of any systemic racial discrimination in the provision of guidance and counseling services. During her testimony, Ms. Elston will also address the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Ms. Elston may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. 4. Sadie Mitchell. Ms. Mitchell will testify from 3:00 p.m. to 4:00 p.m. on Thursday, July 25, 2002, regarding the District's compliance with Revised Plan  2.6, 2.6.2, 2.6.3, 2.11 and 2.11. 1. Ms. Mitchell is the Associate Superintendent for School Services for the District. Ms. Page 4 of 7 Mitchell may offer testimony responsive to evidence offered by the Joshua Intervenors during their case. 5. Baker Kurrus. Mr. Kurrus will testify on Friday, July 26, 2002, from 9:00 a.m. until 10:00 a.m. regarding the District's good faith commitment to comply with the Constitution even if no longer monitored by the Court. Mr. Kurrus is President of the District's Board of Directors. Mr. Kurrus will testify that the Board adopted and/or re-adopted policies during the term of the Revised Plan requiring compliance with the Revised Plan requirements regarding guidance counseling, extracurricular activities and advanced placement courses, that every policy was adopted after being read at a prior Board meeting; that the Board fully expected the administration to comply with its policies requiring compliance with the Revised Plan requirements regarding guidance counseling, extracurricular activities and advanced placement courses; that the administration reported to the Board that it was complying with the Revised Plan requirements regarding guidance counseling, extracurricular activities and advanced placement courses; that a representative of the Joshua Jntervenors was permitted to address the Board whenever requested; that in the 1998-1999 school year, the Board had 23 meetings and no representative of the Joshua Jntervenors addressed the Board; that during the 1999-2000 school year, the Board had 20 meetings and a representative of the Joshua Jntervenors appeared on July 22, 1999 and November 10, 1999; that at the July 22, 1999 meeting, attorney John Walker raised only general concerns; that the Board understood that the Superintendent worked with the Joshua Intervenors to address those concerns; that on November 10, 1999, attorney John Walker appeared to support parents and community members opposed to the closing of Mitchell Elementary School; that the Board agreed not to close Mitchell Elementary School; that during the 2000-2001 school year, the Board had 27 meetings, and the minutes reflect Page 5 of 7 that Joy Springer appeared on behalf of the Joshua Intervenors on January 25, 2001; that on that date Ms. Springer stated that improvements had been made, that there were still some issues to be addressed and that the Joshua Intervenors were hoping to work with administrators and the Board to address those issues; that the Board understood that the administration attempted to work with the Joshua Intervenors to resolve those issues; that the Board expected the Joshua Intervenors to raise in a timely manner any compliance issues which could jeopardize the District obtaining unitary status, either with the Board or pursuant to Revised Plan  8; that the Board agreed to pay the Joshua Intervenors in advance to ensure Joshua's ability to monitor the District's compliance; that Joshua billed the District for monitoring, and the District paid those bills; that the Board never had any evidence presented to it that the District had not substantially complied with the Revised Plan requirements regarding guidance counseling, extracurricular activities and advanced placement - courses; and that the Board adopted the Covenant to demonstrate and memorialize its good faith commitment to the Revised Plan requirements regarding guidance counseling, extracurricular activities and advanced placement courses and the Constitution in the future. Mr. Kurrus may also offer testimony responsive to evidence offered by the Joshua Intervenors during their case. Respectfully    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["judicial records"],"dcterms_extent":["116 page scan, typed"],"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\u003cdcterms_description type=\"array\"\u003e   \n\n\u003cdcterms_description\u003eThis transcript was create using Optical Character Recognition (OCR) and may contain some errors.    Hl::,RSCHEL H. PRIDAY ( 1922-1994) WILLIAM H. SUTTON, P.A. BYRON M. EISEMAN. JR., P.A. JOE D. BELL. P.A. )A. BUTTRY, P.A. FR KS. URSERY, P.A. OS DAVIS, JR., P.A. JAM . CLARK, JR., P.A. THOMAS P. LEGGETT, P.A. JOHN DEWEY WATSON. P.A. PAUL B. BENHAM Ill. P.A. LARRY W. BURKS, P.A. A. WYCK..LIPP NISBET, JR .. P.A. JAMES EDWARD HARRIS. P.A. J. PHILLIP MALCOM. P.A. JAMES M. SIMPSON. P.A. JAMES M. SAXTON, P.A. J. SHEPHERD RUSSELL Ill. P.A. DONALD H. BACON. P.A. WILLIAM THOMAS BAXTER. P.A. RICHARD D. TAYLOR. P.A. JOSEPH B. HURST, JR .. P.A. ELIZABETH ROBBEN MURRAY, P.A. CHRISTOPHER HELLER. P.A. LAURA HENSLEY SMITH, P.A. ROBERT S. SHAPER. P.A. WILLIAM M. GRIFFIN Ill, P.A. MICHAELS. MOORE, P.A. DIANE S. MACKEY, P.A. WALTER M. EBEL Ill , P.A. KEVIN A. CRASS, P.A. WILLIAM A. WADDELL. JR .. P.A. SCOTT J. LANCASTER. P.A. ROBERT B. BEACH, JR., P.A. J , LEE BROWN, P.A. JAMES C. BAKER, JR., P.A. HARRY A. LIGHT, P.A. SCOTT H. TUCKER, P.A. GUY ALTON WADE, P.A. PRICE C. GARONER. P.A. TONIA P. JONES, P.A. OAVlD 0 . WILSON, P.A. JEFFREY H. MOORE, P.A. DAVID M. GRAF, P.A. Ms. Ann Marshall Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Attention: Linda Bryant Re: LRSD v. PCSSD Dear Linda: FRJDA Y ELDREDGE \u0026amp; CLARK ATTORNEYS AT LAW A LIMITED LIABILITY PARTNERSHIP www.fridayfirm.com 2000 REGIONS CENTER 400 WEST CAPITOL LITTLE ROCK, ARKANSAS 72201-3493 TELEPHONE 501-376-2011 FAX 501-376-2147 3425 NORTH FUTRALL DRIVE . SUITE 103 FAYETTEVILLE, ARKANSAS 72703-  811 TELEPHONE  79 - 695-2011 FAX 479-695-2147 208 NORTH FIFTH STREET BLYTHEVILLE, ARKANSAS 72315 TELEPHONE 870-7622898 FAX 870-762-2918 June 12, 2002 CARLA GUNNELS SPAINHOUR. P.A. JOHN C. FENDLEY, JR., P.A. JON ANN ELIZABETH CONIGLIO. P.A. R. CHRISTOPHER LAWSON. P.A. FRANC. HICKMAN, P.A. BETTY J. DEMORY, P.A. LYNDA M. JOHNSON. P.A. JAMES W. SMITH, P.A. CLIFFORD W. PLUNKETT, P.A. DANIELL. HERRINGTON, P.A. MARVIN L. CHILDERS K. COLEMAN WESTBROOK, JR. ALLISON J. CORNWELL ELLEN M. OWENS JASON B. HENDREN BRUCE 8 . TIDWELL MICHAELE. KARNEY KELLY MURPHY MCQUEEN JOSEPH P. MCKAY ALEXANDRA A. IFRAH JAY T. TAYLOR MARTIN A. KASTEN RECEIVED JUN 1 ~ 2002 OFFICE OF DESEBREGATIOII MONITORING BRYAN W. DUKE JOSEPH G. NICHOLS ROBERT T. SMITH RYAN A. BOWMAN TIMOTHY C. EZELL T. MICHELLE ATOR KAREN S. HALBERT SARAH M. COTTON PHILIP 8 . MONTGOMERY KRISTEN S. RIGGINS ALAN G. BRYAN LINDSEY MITCHAM SLOAN KHAYYAM M. EDDINGS JOHN F. PEISERICH o t cOUNSEL D.S. CLARK WILLIAM L. TERRY WILLIAM L. PATTON, JR. H.T. LARZELERE. P.A. JOHN C. ECHOLS, P.A. A.O. MCALLISTER CHRISTOPHER HELLER LITTLE ROCK TEL 501-370-1509 FAX 501-244-534  heller@fec .net As you requested in our phone conversation of today, I have enclosed a copy of Plaintiffs Reply Brief in Support of Motion for an Immediate Declaration of Unitary Status reflecting a filing date of June 7, 2002. I have handwritten a corrected date of service on the last page. /bk Enc. Sincerely, ~ Brenda Kampman, Legal Assistant for Christopher Heller ,. -  E.~,~::- . IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKl COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL RECEIVED JUN 1 3 2002 omcEoF DESEGREGATION MONITORING PLAINTIFF'S REPLY BRIEF IN SUPPORT OF DEFENDANTS INTERVENORS INTER VEN ORS MOTION FOR AN IMMEDIATE DECLARATION OF UNITARY STATUS I. Revised Plan Sections Already Litigated. A. Revised Plan 2.12.2. 2. I 2.2: LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. The Revised Plan was approved by Judge Wright on the joint motion of the LRSD and Joshua on April 10, 1998. Over three years later, the Joshua Intervenors (\"Joshua\") objected to the LRSD being granted unitary status. In their objections filed June 25, 2001 , Joshua made no reference to Revised Plan 2.12.2. Yet, Joshua now argues that 2.12.2 obligated the LRSD to investigate, reduce and/or eliminate the racial disparity in discipline and achievement. This argument should be rejected as untimely, inconsistent with the plain language of 2.12.2 and contrary to the interpretation given  2.12.2 by the parties during the term of the Revised Plan. Joshua's argument is untimely because they raised no objection to the LRSD's compliance with 2.12.2 in their objections filed June 25, 2001 . Joshua's argument is also inconsistent with the plain language of 2.12.2 which limits application of the provision to \"programs and activities.\" Discipline and achievement cannot fairly be construed as \"programs\" or \"activities.\" ' .'!SAS ~-.:..:... Finally, neither the LRSD nor Joshua interpreted  2.12.2 as requiring investigation of the - racial disparities in discipline and achievement during the term of the Revised Plan. See AMI Civil 41\\ 3015 (Supp. 200l)(\"You should give weight to the meaning placed on the language by the parties themselves, as shown by their statements, acts, or conduct after the contract was made.\"). The LRSD's obligations with regard to discipline and achievement were specifically set forth in 2.5 and 2.7, respectively. Those sections set forth Joshua's entire \"remedy\" relat~d to discipline and achievement issues. Revised Plan  2.12.2 was intended to address racial disparities \"in programs and activities\" which might arise but were not otherwise covered by the Revised Plan. See AMI Civil 41\\ 3021 (Supp. 2001)(\"If there is a contradiction between general provisions and more detailed, specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions.\"). Joshua's current interpretation of 2.12.2 was never brought to the attention of the LRSD during the term of the Revised Plan. Joshua knew no later than March of2000 that the LRSD was not \"investigating\" the racial disparity in discipline and achievement. Joshua's silence - precludes it from arguing for a contrary interpretation after complete performance by the LRSD. See Waste Management of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1144-45 (6th Cir. 1997)(recognizing a district court's jurisdiction to consider whether the equitable principle of estoppel has altered a parties obligations and duties under a consent decree); U.S. v. City of Fort Smith, 760 F.2d 231 , 233-34 (8th Cir. 1985)(\"We note that, for purposes of enforcement, consent decrees are to be construed as contracts.\"); Bharodia v. Pledger, 66 Ark. App. 349,355, 990 S.W.2d 581 , 585 (1999)(\"It has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract.\"); Stephens v. West Pontiac-GMC, Inc., 7 Ark. App. 275,278, 647 S.W.2d 492,493 (1983)(\"The rule is that a party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and 2 suffers the other party to continue in performance thereof, waives the right to insist on the - breach.\"). In fact, Joshua's belated assertion that 2.12.2 applied to the racial disparity in discipline and achievement represents an effort by Joshua to shed the burden of proof they accepted in Revised Plan  11. Joshua clearly failed to meet their burden of establishing that the current racial disparities in discipline and achievement resulted from discrimination by the LRSD. Recognizing this failure, Joshua argues that  2.12.2 obligated the LRSD to determine the cause of these disparities. For the reasons set forth above, this argument is without merit. Discipline and achievement are not \"programs\" or \"activities.\" Consequently, Revised Plan 2.12.2 is irrelevant to the LRSD's compliance with Revised Plan 2.5 and 2.7. A. Revised Plan 2.7: Academic Achievement. LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. Joshua argues that \"[t]he LRSD did not develop any particular program designed to remedy [the] achievement disparity between black and white pupils.\" Joshua's Response, p. 52. This is not true. The LRSD implemented programs designed to improve and remediate AfricanAmerican achievement, as required by the Revised Plan. Dr. Carnine testified as follows: Q. I see. Did you adopt a single program by which to narrow the achievement gap between black -- the academic achievement between black and white students, as set forth in the Settlement Agreement which we signed? A single program, Doctor, one program, did you do that? A. Ifl may, I am going to say yes, because I believe ultimately ifwe remediate achievement, that the gap will, in fact, close. Tr. July 6, 2001, p. 378. Dr. Camine's response can be best understood when considered in light of the Court's comments which immediately preceded it. As in their Response, Joshua insisted at the hearing of talking about reducing the disparity, rather than improving African-American achievement. 3 Judge Wright interrupted Joshua's cross-examination of Dr. Carnine when counsel for Joshua - refused to recognize the distinction and stated: THE COURT: All right. I want to just again, and I don't want you to - I don't want you to get into an argument with him. But this witness takes the position that there is a difference between raising the achievement level of minority students and closing the disparity - the achievement gap. MR. W Al.KER: I understand, and that - THE COURT: And in his defense, I am not trying to take his side in this matter, I am trying to be a fair Judge, but in his defense, Section 2.7 of this plan requires the District to \"implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students\" . . .. And so, what he is going to testify -- what he wants to testify to is not reducing the disparity, but increasing African-American achievement. And I am going to -- based on the language of the plan, I am going to let him stick to that. MR. WALKER: That's fine. Tr. July 6, 2001, pp. 376-77. Despite Judge Wright's admonishment, counsel for Joshua continued to question Dr. Carnine about the \"achievement gap,\" leading to Dr. Camine's testimony that improving African-American achievement should narrow the racial disparity in - achievement. Dr. Carnine testified that the Revised Plan's approach to reducing the racial disparity in achievement was to implement programs designed to improve African-American achievement. Tr. July 6, 2001, pp. 450-52. Dr. Carnine further testified that Joshua accepted that approach when they agreed to the Revised Plan. Tr. July 6, 2001, p. 452. The parties' joint brief seeking approval of the Revised Plan supports Dr. Carnine's testimony. In that brief, the parties stated, \"With regard to the achievement disparity, the January 16 Revised Plan recognizes that the only legitimate means to eliminate the racial disparity in achievement is by improving AfricanAmerican achievement.\" See Docket No. 3108, p. 2 ( emphasis supplied). Therefore, there is no merit to Joshua's argument that the LRSD did not implement programs designed to eliminate the racial disparity in achievement. The LRSD did exactly what 4 the Revised Plan called for in that regard - it implemented programs designed to improve and - remediate African-American achievement. Joshua also argues that \"implementation fell short in areas deemed significant by [the] LRSD .... \" Joshua's Response, p. 51. To support this argument, Joshua primarily relies on the LRSD's Interim Report and Final Report which detail the implementation status of the District's comprehensive curriculum reforms. Joshua's argument fails to recognize that implementation of new curriculum programs is a process, not an event. Joshua's argument suggests that the Revised Plan required everything to be implemented on day one. If Joshua really believed this, they should have objected no later than when the LRSD filed its Interim Report, on which they rely heavily in their Response. They never objected to the status of the LRSD's implementation during the Revised Plan's term and should be estopped from objecting after the LRSD has completed performance. See Waste Management, City of Fort Smith, Bharodia and Stephens, Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan  - 2.7. See Revised Plan,  11. To meet this burden based on the racial disparity in achievement required that Joshua come forward with evidence that the disparity resulted from the LRSD's noncompliance, rather than other factors. See People Who Care v. Rockford Bd. of Educ., 246 F.3d 1073, 1076-77 (7th Cir. 2001 ). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan  2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in achievement and implement a remedy. For the reasons discussed above, that argument is wholly without merit. The LRSD agreed to implement programs, policies and procedures designed to improve African-American achievement, and it has done so. Accordingly, the LRSD should be declared unitary and released from court supervision in the area of student achievement. See Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430 (1992)(\"Partial relinquishment of judicial control, where justified by the facts of the 5 case, can be an important step in fulfilling the district court's duty to return the operations and - control of schools to local authorities.\"). B. Revised Plan  2. 7 .1 : Program Assessment. LRSD shall assess the academic programs implemented pursuant to Section 2. 7 after each year in order to determine the effectiveness of the academic programs in improving AfricanAmerican achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. Joshua's Response on this issue begins by misstating the LRSD's position. The LRSD does not contend that all it had to do to comply with  2. 7 .1 was administer annual assessments to students. That was step one in a two step process. The second step was using the assessment data \"to determine the effectiveness of the academic programs in improving African-American achievement.\" See Revised Plan, 2.7.1. See Tr. Nov. 19, 2001, p. 246. The LRSD did this, and Dr. Lesley provided the Court with several examples of program changes made by the LRSD based on the annual assessment data. See Tr. Nov. 19, 2001, pp. 247-75. - The distinction to be made is between an informal evaluation made using the annual assessment data and a formal, written program evaluation. The LRSD did both, although 2.7.1 only required the former. The formal, written program evaluations conducted pursuant to the Revised Plan were referred to as the Board-adopted Research Agenda. See Interim Report, p. 53. Joshua's outline of the various documents detailing the LRSD's efforts to comply with 2. 7. I completely ignores ODM's August 11, 1999 monitoring report. Joshua knew or should have known upon publication of that report that the LRSD did not intend to prepare a formal program evaluation every year for every program in the District affecting African-American achievement; yet, Joshua raised no objection. See Tr. Nov. 20, 2001, pp. 370-71; Docket No. 3289, ODM Report, August 11, 1999, p. 43. The LRSD's March 2000 Interim Report again detailed the LRSD's plans for complying with 2.7.1. Again, Joshua raised no objection. If 6 Joshua believed the LRSD had an obligation to do more, then Joshua had an obligation to put the - LRSD on notice of that belief. Since they did not, they are estopped arguing that what the LRSD did was not enough. See Waste Management, City of Fort Smith, Bharodia and Stephens, supra. The LRSD substantially complied with Revised Plan 2.7.1, and accordingly, should be declared unitary and released from court supervision with regard thereto. See Freeman, 503 U.S. at 489. C. Revised Plan  2.5 - 2.5.4: Student Discipline. Joshua concedes that \"(t]here is no predicate for the court to find a lack of substantial compliance with Sections 2.5.1, 2.5.2 and 2.5.3 of the revised plan.\" Joshua focuses its attack on Revised Plan 2.5 and 2.5.4. Each of these sections will be discussed in tum below. 1. 2.5. LRSD shall implement programs, policies and/or procedures designed to ensure that there is no racial discrimination with regard to student discipline. Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan  2.5. See Revised Plan,  11. To meet this burden based on the racial disparity in discipline required that Joshua come forward with evidence that the disparity resulted from systematic discrimination by the LRSD's in the imposition of discipline. See People Who Care, 246 F.3d at 1076-77 (achievement disparity). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan 2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in discipline and implement a remedy. For the reasons discussed above, that argument is wholly without merit. Joshua came forward with no evidence ofracial discrimination by the LRSD, and accordingly, the LRSD should be declared unitary and released from court supervision with regard to Revised Plan 2.5. See Freeman, 503 U.S. at 489. Joshua takes out of context Dr. Linda Watson's testimony concerning the ODM's June 14, 2000, monitoring report on student discipline. See CX 583. Joshua would have this Court believe that the District and Dr. Watson completely ignored the report. While it is true that 7 Superintendent Carnine instructed Dr. Watson not to prepare a formal response to the report, Tr. - Nov. 19, 2001, p. 178, Dr. Watson explained in her testimony what the District did to address each ofODM's recommendations. Tr. Nov. 19, 2001, pp. 85-102. Even if the LRSD had completely ignored the report, the Revised Plan did not require the LRSD to implement ODM's recommendations, and the report itself merely describes the recommendations as \"suggestions.\" ex 583, p. 121. 2. 2.5.4. LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. Joshua's argues that the District failed to meet its obligation under Revised Plan 2.5.4 based on evidence that the District did not maintain a document compiling the total number of behavior modification plans developed and that the District did not prepare a document entitled, \"Monitoring Report of Behavior Modification Plans.\" The Revised Plan required neither. Joshua bore the burden of proof. See Revised Plan  11. There was no evidence that any student who needed a behavior modification plan did not get one. Dr. Watson testified that she reversed - suspensions and sent students back to school to do a behavior modification plans when necessary. Tr. Nov. 19, 2001, p. 136. The fact that the LRSD did not keep a list of all students with behavior modification plans falls far short of establishing noncompliance with  2.5.4. Therefore, the LRSD should be declared unitary with regard to student discipline. See Freeman, 503 U.S. at 489. D. Conclusion. Joshua concludes its discipline argument with the statement that \"Dr. Watson had a vast array of responsibilities, more than one person could reasonably be expected to accomplish.\" Joshua's Brief, p. 15. What Joshua fails to comprehend is that this could just as easily be said about most of the District's administrators, principals and teachers. The LRSD agrees that there were things it could have done better. It said as much in both the Interim Report and Final Report. While the LRSD strives for perfection, that is not the legal standard. See Belk v. 8 Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 335 (4th Cir. 2001) (Traxler, J.)(\"This is not - to say that CMS is a perfect school system - it is not.\"). The issue before this Court is whether the LRSD Board of Directors can be trusted comply with the Constitution absent court supervision. See Cody v. Hillard, 139 F.3d 1197, 1199 (8th Cir. 1998). Joshua came forward with no evidence that they could not, and as a result, the LRSD is entitled to an order granting unitary status in accordance with Revised Plan  11. II. Summary Judgment. The LRSD moved for summary judgment with regard to those Revised Plan sections which were timely challenged by Joshua but which have not yet been litigated. The summary judgment process may be used to terminate a consent decree without an evidentiary hearing. See Cody, 139 F.3d at 1200 (\"They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision of a decree . . . . At any rate, the necessity of a hearing depends on whether there are disputed factual issues.\"). Summary judgment is appropriate when the Court finds that there is no genuine issue as to any material fact and that the moving party is - entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion and of identifying those parts of the record which demonstrate absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The LRSD met its burden by pointing out that there is no evidence of noncompliance sufficient to cast doubt on the District's intent to comply with the Constitution absent court supervision. See Cody, 139 F.3d at 1199. This shifted the burden to Joshua to come forward with such evidence. See Matushita Blee. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1989). Joshua failed to meet their burden. Moreover, Joshua's failure to controvert the LRSD's Statement of Material Facts Not in Dispute means that those facts are deemed admitted. See Rule 56. l(c) of the Rules for the 9 United States District Court for the Eastern and Western Districts of Arkansas. Based on those - facts, the LRSD should be granted summary judgment with regard to all remaining issues. Joshua does not even purport to respond to the LRSD's motion for summary judgment. Rather, Joshua notes that the Court has already scheduled a hearing on the remaining Revised Plan sections to be litigated - as if this negated the need for them to respond. The summary judgment process is designed to determine whether a factual dispute exists which requires an' evidentiary hearing. Joshua failed to come forward with evidence establishing a factual dispute, and therefore, the LRSD should be granted summary judgment. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRlDA Y, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-2011 ------ CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on Mareh 15, 2002: ~ '1 ~o1);)-. Mr. John W. Walker J- J JOHNW. WALKER, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 - Ms. Ann Marshall (hand-delivered) Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Robert Pressman 22 Locust A venue Lexington, MA 02421 11 RECEIVED IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL PLAINTIFF'S REPLY BRIEF IN SUPPORT OF JUN 11 2002 OFACEOF DESEGREGATION MONITORING PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS MOTION FOR AN IMMEDIATE DECLARATION OF UNIT ARY STATUS I. Revised Plan Sections Already Litigated. A. Revised Plan  2.12.2. 2.12.2: LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. The Revised Plan was approved by Judge Wright on the joint motion of the LRSD and Joshua on April 10, 1998. Over three years later, the Joshua Intervenors (\"Joshua\") objected to the LRSD being granted unitary status. In their objections filed June 25, 2001, Joshua made no reference to Revised Plan 2.12.2. Yet, Joshua now argues that 2.12.2 obligated the LRSD to investigate, reduce and/or eliminate the racial disparity in discipline and achievement. This argument should be rejected as untimely, inconsistent with the plain language of 2.12.2 and contrary to the interpretation given 2.12.2 by the parties during the term of the Revised Plan. Joshua's argument is untimely because they raised no objection to the LRSD's compliance with 2.12.2 in their objections filed June 25, 2001. Joshua's argument is also inconsistent with the plain language of 2.12.2 which limits application of the provision to \"programs and activities.\" Discipline and achievement cannot fairly be construed as \"programs\" or \"activities.\" Finally, neither the LRSD nor Joshua interpreted 2.12.2 as requiring investigation of the - racial disparities in discipline and achievement during the term of the Revised Plan. See AMI Civil 4th , 3015 (Supp. 2001)(\"You should give weight to the meaning placed on the language by the parties themselves, as shown by their statements, acts, or conduct after the contract was made.\"). The LRSD's obligations with regard to discipline and achievement were specifically set forth in 2.5 and 2.7, respectively. Those sections set forth Joshua's entire \"remedy\" related to discipline and achievement issues. Revised Plan 2.12.2 was intended to address racial disparities \"in programs and activities\" which might arise but were not otherwise covered by the Revised Plan. See AMI Civil 41\\ 3021 (Supp. 2001)(\"Ifthere is a contradiction between general provisions and more detailed, specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions.\"). Joshua's current interpretation of 2.12.2 was never brought to the attention of the LRSD during the term of the Revised Plan. Joshua knew no later than March of2000 that the LRSD was not \"investigating\" the racial disparity in discipline and achievement. Joshua's silence - precludes it from arguing for a contrary interpretation after complete performance by the LRSD. See Waste Management of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1144-45 (6th Cir. l 997)(recognizing a district court's jurisdiction to consider whether the equitable principle of estoppel has altered a parties obligations and duties under a consent decree); U.S. v. City of Fort Smith, 760 F.2d 231, 233-34 (8th Cir. 1985)(\"We note that, for purposes of enforcement, consent decrees are to be construed as contracts.\"); Bharodia v. Pledger, 66 Ark. App. 349,355, 990 S.W.2d 581,585 (1999)(\"It has also been held that a party with knowledge of a breach of contract by the other party waives the right to insist on a forfeiture when he allows the other party to continue in performance of the contract.\"); Stephens v. West Pontiac-GMC, Inc., 7 Ark. App. 275,278, 647 S.W.2d 492,493 (1983)(\"The rule is that a party to a contract who, with knowledge of a breach by the other party, continues to accept benefits under the contract and 2 suffers the other party to continue in performance thereof, waives the right to insist on the - breach.\"). In fact, Joshua's belated assertion that 2.12.2 applied to the racial disparity in discipline and achievement represents an effort by Joshua to shed the burden of proof they accepted in Revised Plan  11. Joshua clearly failed to meet their burden of establishing that the current racial disparities in discipline and achievement resulted from discrimination by the LRSD. Recognizing this failure, Joshua argues that 2.12.2 obligated the LRSD to determine the cause of these disparities. For the reasons set forth above, this argument is without merit. Discipline and achievement are not \"programs\" or \"activities.\" Consequently, Revised Plan 2.12.2 is irrelevant to the LRSD's compliance with Revised Plan 2.5 and 2.7. A. Revised Plan 2.7: Academic Achievement. LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan. Joshua argues that \"[t]he LRSD did not develop any particular program designed to remedy [the] achievement disparity between black and white pupils.\" Joshua's Response, p. 52. This is not true. The LRSD implemented programs designed to improve and remediate AfricanAmerican achievement, as required by the Revised Plan. Dr. Carnine testified as follows: Q. I see. Did you adopt a single program by which to narrow the achievement gap between black -- the academic achievement between black and white students, as set forth in the Settlement Agreement which we signed? A single program, Doctor, one program, did you do that? A. If I may, I am going to say yes, because I believe ultimately if we remediate achievement, that the gap will, in fact, close. Tr. July 6, 2001, p. 378. Dr. Carnine's response can be best understood when considered in light of the Court's comments which immediately preceded it. As in their Response, Joshua insisted at the hearing of talking about reducing the disparity, rather than improving African-American achievement. 3 Judge Wright interrupted Joshua's cross-examination of Dr. Carnine when counsel for Joshua - refused to recognize the distinction and stated: THE COURT: All right. I want to just again, and I don't want you to - I don't want you to get into an argument with him. But this witness takes the  position that there is a difference between raising the achievement level of minority students and closing the disparity- the achievement gap. MR. WALKER: I understand, and that - THE COURT: And in his defense, I am not trying to take his side in this matter, I am trying to be a fair Judge, but in his defense, Section 2.7 ofthis plan requires the District to \"implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students\" .. . . And so, what he is going to testify-- what he wants to testify to is not reducing the disparity, but increasing African-American achievement. And I am going to -- based on the language of the plan, I am going to let him stick to that. MR. WALKER: That's fine. Tr. July 6, 2001, pp. 376-77. Despite Judge Wright's admonishment, counsel for Joshua continued to question Dr. Carnine about the \"achievement gap,\" leading to Dr. Carnine's testimony that improving African-American achievement should narrow the racial disparity in - achievement. Dr. Carnine testified that the Revised Plan's approach to reducing the racial disparity in achievement was to implement programs designed to improve African-American achievement. Tr. July 6, 2001, pp. 450-52. Dr. Carnine further testified that Joshua accepted that approach when they agreed to the Revised Plan. Tr. July 6, 2001, p. 452. The parties' joint brief seeking approval of the Revised Plan supports Dr. Carnine's testimony. In that brief, the parties stated, \"With regard to the achievement disparity, the January 16 Revised Plan recognizes that the only legitimate means to eliminate the racial disparity in achievement is by improving AfricanAmerican achievement.\" See Docket No. 3108, p. 2 ( emphasis supplied). Therefore, there is no merit to Joshua's argument that the LRSD did not implement programs designed to eliminate the racial disparity in achievement. The LRSD did exactly what 4 the Revised Plan called for in that regard - it implemented programs designed to improve and remediate African-American achievement. Joshua also argues that \"implementation fell short in areas deemed significant by [the] LRSD ... . \" Joshua's Response, p. 51 . To support this argument, Joshua primarily relies on the LRSD's Interim Report and Final Report which detail the implementation status of the District's comprehensive curriculum reforms. Joshua's argument fails to recognize that implementation of new curriculum programs is a process, not an event. Joshua's argument suggests that the Revised Plan required everything to be implemented on day one. If Joshua really believed this, they should have objected no later than when the LRSD filed its Interim Report, on which they rely heavily in their Response. They never objected to the status of the LRSD's implementation during the Revised Plan's term and should be estopped from objecting after the LRSD has completed performance. See Waste Management, City of Fort Smith, Bharodia and Stephens, supra. Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan  - 2.7. See Revised Plan, 11. To meet this burden based on the racial disparity in achievement required that Joshua come forward with evidence that the disparity resulted from the LRSD's noncompliance, rather than other factors. See People Who Care v. Rockford Bd. of Educ., 246 F.3d 1073, 1076-77 (7th Cir. 2001). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan  2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in achievement and implement a remedy. For the reasons discussed above, that argument is wholly without merit. The LRSD agreed to implement programs, policies and procedures designed to improve African-American achievement, and it has done so. Accordingly, the LRSD should be declared unitary and released from court supervision in the area of student achievement. See Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430 (1992)(\"Partial relinquishment of judicial control, where justified by the facts of the 5 case, can be an important step in fulfilling the district court's duty to return the operations and - control of schools to local authorities.\"). B. Revised Plan  2. 7 .1 : Program Assessment. LRSD shall assess the academic programs implemented pursuant to Section 2. 7 after each year in order to determine the effectiveness of the academic programs in improving AfricanAmerican achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. Joshua's Response on this issue begins by misstating the LRSD's position. The LRSD does not contend that all it had to do to comply with  2. 7 .1 was administer annual assessments to students. That was step one in a two step process. The second step was using the assessment data \"to determine the effectiveness of the academic programs in improving African-American achievement.\" See Revised Plan,  2.7.1. See Tr. Nov. 19, 2001, p. 246. The LRSD did this, and Dr. Lesley provided the Court with several examples of program changes made by the LRSD based on the annual assessment data. See Tr. Nov. 19, 2001, pp. 247-75 . - The distinction to be made is between an informal evaluation made using the annual assessment data and a formal, written program evaluation. The LRSD did both, although  2. 7 .1 only required the former. The formal, written program evaluations conducted pursuant to the Revised Plan were referred to as the Board-adopted Research Agenda. See Interim Report, p. 53. Joshua's outline of the various documents detailing the LRSD's efforts to comply with  2.7.1 completely ignores ODM's August 11 , 1999 monitoring report. Joshua knew or should have known upon publication of that report that the LRSD did not intend to prepare a formal program evaluation every year for every program in the District affecting African-American achievement; yet, Joshua raised no objection. See Tr. Nov. 20, 2001, pp. 370-71 ; Docket No. 3289, ODM Report, August 11, 1999, p. 43. The LRSD's March 2000 Interim Report again detailed the LRSD's plans for complying with 2.7.1. Again, Joshua raised no objection. If 6 Joshua believed the LRSD had an obligation to do more, then Joshua had an obligation to put the - LRSD on notice of that belief. Since they did not, they are estopped arguing that what the LRSD did was not enough. See Waste Management, City of Fort Smith, Bharodia and Stephens, supra. The LRSD substantially complied with Revised Plan  2. 7 .1, and accordingly, should be declared unitary and released from court supervision with regard thereto. See Freeman, 503 U.S. at 489. C. Revised Plan 2.5 - 2.5.4: Student Discipline. Joshua concedes that \"[t]here is no predicate for the court to find a lack of substantial compliance with Sections 2.5.1, 2.5.2 and 2.5.3 of the revised plan.\" Joshua focuses its attack on Revised Plan 2.5 and 2.5.4. Each of these sections will be discussed in turn below. 1. 2.5. LRSD shall implement programs, policies and/or procedures designed to ensure that there is no racial discrimination with regard to student discipline. Joshua bore the burden of establishing the LRSD's noncompliance with Revised Plan 2.5. See Revised Plan,  11. To meet this burden based on the racial disparity in discipline required that Joshua come forward with evidence that the disparity resulted from systematic discrimination by the LRSD's in the imposition of discipline. See People Who Care, 246 F.3d at 1076-77 (achievement disparity). In their Response, Joshua does not even argue that they met this burden. Rather, Joshua argues that Revised Plan  2.12.2 placed the burden on the LRSD to determine the cause of the racial disparity in discipline and implement a remedy. For the reasons discussed above, that argument is wholly without merit. Joshua came forward with no evidence ofracial discrimination by the LRSD, and accordingly, the LRSD should be declared unitary and released from court supervision with regard to Revised Plan 2.5. See Freeman, 503 U.S. at 489. Joshua takes out of context Dr. Linda Watson's testimony concerning the OD M's June 14, 2000, monitoring report on student discipline. See CX 583. Joshua would have this Court believe that the District and Dr. Watson completely ignored the report. While it is true that 7 Superintendent Carnine instructed Dr. Watson not to prepare a formal response to the report, Tr. - Nov. 19, 2001 , p. 178, Dr. Watson explained in her testimony what the District did to address each ofODM's recommendations. Tr. Nov. 19, 2001, pp. 85-102. Even if the LRSD had completely ignored the report, the Revised Plan did not require the LRSD to implement ODM's recommendations, and the report itself merely describes the recommendations as \"suggestions.\" ex 583, p. 121. 2. 2.5.4. LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. Joshua's argues that the District failed to meet its obligation under Revised Plan 2.5.4 based on evidence that the District did not maintain a document compiling the total number of behavior modification plans developed and that the District did not prepare a document entitled, \"Monitoring Report of Behavior Modification Plans.\" The Revised Plan required neither. Joshua bore the burden of proof. See Revised Plan 11. There was no evidence that any student who needed a behavior modification plan did not get one. Dr. Watson testified that she reversed - suspensions and sent students back to school to do a behavior modification plans when necessary. Tr. Nov. 19, 2001, p. 136. The fact that the LRSD did not keep a list of all students with behavior modification plans falls far short of establishing noncompliance with 2.5.4. Therefore, the LRSD should be declared unitary with regard to student discipline. See Freeman, 503 U.S. at 489. D. Conclusion. Joshua concludes its discipline argument with the statement that \"Dr. Watson had a vast array ofresponsibilities, more than one person could reasonably be expected to accomplish.\" Joshua's Brief, p. 15. What Joshua fails to comprehend is that this could just as easily be said about most of the District's administrators, principals and teachers. The LRSD agrees that there were things it could have done better. It said as much in both the Interim Report and Final Report. While the LRSD strives for perfection, that is not the legal standard. See Belk v. 8 Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 335 (4th Cir. 2001) (Traxler, J.)(\"This is not - to say that CMS is a perfect school system - it is not.\"). The issue before this Court is whether the LRSD Board of Directors can be trusted comply with the Constitution absent court supervision. See Cody v. Hillard, 139 F.3d 1197, 1199 (8th Cir. 1998). Joshua came forward with no evidence that they could not, and as a result, the LRSD is entitled to an order granting unitary status in accordance with Revised Plan  11 . II. Summary Judgment. The LRSD moved for summary judgment with regard to those Revised Plan sections which were timely challenged by Joshua but which have not yet been litigated. The summary judgment process may be used to terminate a consent decree without an evidentiary hearing. See Cody. 139 F.3d at 1200 (\"They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision of a decree . . . . At any rate, the necessity of a hearing depends on whether there are disputed factual issues.\"). Summary judgment is appropriate when the Court finds that there is no genuine issue as to any material fact and that the moving party is - entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); Celotex Com. v. Catrett, 477 U.S. 317,323 (1986). The party moving for summary judgment bears the initial burden of informing the court of the basis for the motion and of identifying those parts of the record which demonstrate absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The LRSD met its burden by pointing out that there is no evidence of noncompliance sufficient to cast doubt on the District's intent to comply with the Constitution absent court supervision. See Cody. 139 F.3d at 1199. This shifted the burden to Joshua to come forward with such evidence. See Matushita Elec. Indus. Co., Ltd. v. Zenith Radio Com., 475 U.S. 574, 585-87 (1989). Joshua failed to meet their burden. Moreover, Joshua's failure to controvert the LRSD's Statement of Material Facts Not in Dispute means that those facts are deemed admitted. See Rule 56.l(c) of the Rules for the 9 United States District Court for the Eastern and Western Districts of Arkansas. Based on those - facts, the LRSD should be granted summary judgment with regard to all remaining issues. Joshua does not even purport to respond to the LRSD's motion for summary judgment. Rather, Joshua notes that the Court has already scheduled a hearing on the remaining Revised Plan sections to be litigated - as if this negated the need for them to respond. The summary judgment process is designed to determine whether a factual dispute exists which requires an evidentiary hearing. Joshua failed to come forward with evidence establishing a factual dispute, and therefore, the LRSD should be granted summary judgment. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT FRIDAY, ELDREDGE \u0026amp; CLARK Christopher Heller (#81083) John C. Fendley, Jr. (#92182) 2000 Regions Center 400 West Capitol Little Rock, AR 72201-3493 (501) 376-20-1-1 -- CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by depositing a copy of same in the United States mail on Match 15,-2002: ;;\"1\u0026lt; 1 ~Oc) 2,, Mr. John W. Walker 1 JOHN W. WALKER, P.A. 1 723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 - Ms. Ann Marshall (hand-delivered) Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 72201 Mr. Mark Hagemeier Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 Mr. Robert Pressman 22 Locust A venue Lexington, MA 02421 11 .t'.IUDAY ELDREDGE \u0026amp; CLARK IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA. ET AL KATI:IERINE KNIGIIT, ET AL PLAlNTIFF'S MOTION FOR PROTECTIVE ORDER ANDFOREMERGENCYHEARING ~002/ 041 PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS Plaintiff Little Rock School District (''LRSD\") for its Motion for Protective Order and for Emergency Hearing states: 1. LRSD seeks a protective order to prevent unduly burdensome and harassing - discovery being conducted by the Joshua Intervenors (\"Joshua\") via the Ar.kansas Freedom of Infonnation Act (\"FOIA\"), Ark. Code Ann.  25-19-101 through 25-19-110. 2. The FOIA requests submitted by or on behalf of Joshua are attached hereto as Exhibit 1. Also included in Exhibit 1 are requests for information made by Joshua which did not specifically refer to the FOIA and correspondence with Joshua seeking to resolve this issue without Court intervention. 3. Joshua first sent requests for information on Joshua's counsel's letterhead signed by Joy Springer. Those requests did not mention the Arkansas Freedom of Information Act. LRSD responded that the District,.would treat those requests as discovery requests pursuant to the Federal Rules of Civil Procedure and respond to them accordingly. Joshua then requested generally the same information in a request made pursuant to the Arkansas Freedom of Information Act on the personal stationary of Ms. Springer. On information and belief, Joshua vo 1 ,:;0 1 ,:;vv,:; J.O : J4 .t'AA :\u0026gt;VJ. J'ftj ll47 t .. .lUDAY ELDREDGE \u0026amp; CLARK ~ 003 / 041 - also caused a request identical to the one submitted by Ms. Springer to be submitted by Mr. Terrence Bolden of Jacksonville, Arkansas. 3. The LRSD understood this Court's deadline of June 21, 2002 for identifying witnesses and exhibits to preclude any discovery after that date. 4. The LRSD seeks a protective order pursuant to Fed. R. Civ. P. 26( c) precluding Joshua from submitting FOIA requests to the LRSD and from conducting any further discovery before the July 22, 2002 hearing. 5. Joshua's use of the FOIA to conduct discovery is intended to annoy, oppress and unduly burden LRSD. First, Joshua's requests are over broad. Joshua made no effort to limit its requests to the issues for the July 22, 2002 hearing. Second, the request is unreasonably cumulative. See Fed. R Civ. P. 26(b )(2)(i). Many of the documents requested have already been provided to Joshua (e.g., quarterly reports and academic award reports). Finally, the burden and expense of complying with Joshua's request outweighs any likely benefit. See Fed. R. Civ. P. 26(b)(2)(iii). Pursuant to the Court's order of May 15, 2002, the documen~ will not be admissible at the July 22, 2002 hearing. 6. LRSD has attempted to confer 'With Joshua, but Joshua has not responded to our Jwie 26, 2002 letter seeking to resolve this issue and counsel for Joshua could not be reached by telephone on June 28, 2002. 7. LRSD's memorandum brief in support of this Motion is hereby incorporated by reference. As discussed therein, this Court has discretion to ei:tjoin Joshua's use of the FOJA to conduct discovery. WHEREFORE, Plaintiff prays for a protective order relieving the LRSD from its obligation to respond to the requests for infonnation attached hereto as Exhibit 1; precluding Joshua, or anyone acting on their behalf: from submitting additional FOIA req~ to the LRSD; precluding Joshua from conducting any further discovery in this case until the July 22, 2002 hearing; and directing Joshua to conduct all future discovery pursuant to the Federal Rules of 1-'.IUDAY ELDREDGE \u0026amp; CLARK (aJ00S / 041 Civil Procedure; for an emergency hearing on this Motion; and for all other just and proper relief to which it may be entitled. Respectfully Submitted, LITTLE ROCK SCHOOL DISTRICT Christopher Heller (#81083) John C. Fendley, Jr. (#92182) FRIDAY, ELDREDGE \u0026amp; CLARK Regions Center, Suite 2000 400 West Capitol Little Rock. AR 72201-3493 (501) 376-.zUl-,i.--- B : CERTIFICATE OF SERVICE 1 certify that a copy of the foregoing has been served on the following people by fax and mail on June 28, 2002: Mr. John W. Walker JOHNW. WALKER.P.A. 1723 Broadway Little Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp;JONES, P.A. 42S W. Capitol, Suite 3400 Little Rocle, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm. 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 3 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W. Capitol, Suite 1895 Little Rock, AR 7220 l Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, AR 72201 P:IHOMlal'l!Hl\u0026gt;UMUSD 2001~FOL\\+2Ul . ....i ~ 00 4/ 041 4 \u0026lt;USClll!L ff. PMlt.Y 11'11\"\"1  AM '4. $(JTT01'f, P.A. M. 21$.EMAN. /\u0026amp;.. P \"  stw.. P'.A. A., alJl'TlY., .A =aEOE:IUCX S Ut.SEI.Y. PA, JSCAI.C. CIAVlS.JI..~ r .A. 'AMG.1 C. ~II\\.. f /'I. ntON,\u0026amp;.$ t . UGG1ft, P.A. 'Offli! DWEY ,.-,.T.S01'. l'.A Al.It. 8.. IEl'M .. SIL ,..t.. ...AI.RYW. l~.1.A. \\ . WYCUJ,f'f liflSIGT. IL, r A. 1ANES ED11'AU l'lAUJS. I .A I. NUWf MALCOM. .A. IAME,S IC Slta$0N, P.A. 1ANES N , S.\\XTOM. t .4 . ' Stu:rt1c~ USSLL Ill. , ,., :IOHALO H.. AACOfrl. r .A. IU.tAM THOM.Al, ,A.:ir1'!.' P.A. UCN.-.\u0026amp;0 0 . TAT\\.Ot. f .A. 10.SEIH I . truUT, J   , f.A. IUZAIETII KOPllll\u0026lt; f,WUAY. P.A. CKIUS\"T'Of'tfU: ~ P..A.. LAUI.A Kl!JISLtY SMITH. P,,._ 101~.T ,. :,u.a. -1'.A.. rwA.M M. c-,FptN m. , .A. \u0026gt;UCHA.%1.. S MOOU. f .A. DIAf'l'C S . MAO::E'W\", P.A. W.A.LTU \"' ,aCt.1(1. P A. r..CYI,.. A. Cl.ASS, P.A. WUJ.l\"N A. 'WAOOG\u0026amp;.1.. Jk._ \u0026gt;,..._ SCOTT J. \u0026amp;.AZ\u0026lt;ASTek. P.A. l01lC11.T O DEACK. JL f ,A. J. ~e llO\"'N. P.A. JA.HES C. BAS:P.. Ja.. r .A. .....UY A. UGKT_ r A. SCOTT H. tuaea. ,_,._ GUY AL TOH w..i,e, ........ Ptuee C. CAAJ\u0026gt;H1.. P.A. TOf\\11.t. \"  JONES. I.A. c,,-..YfO D. 'fillSOPI. I .A. IEHI.EY tf. MOOK.. f .o\\. DA.VIO M. GllAl'. P.A Via Fax No. 374-4187 Mr. John Walker JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72206 FRIDAY ELDREDGE \u0026amp; CLARK FRIDAY ELDREDGE \u0026amp; CLARK ATTORNEYS AT LAW A LIMITD LIA81LITY PARTN!l'l5HII\" www.ftid3)'rirm.co'\" 2000 RfGIONS CENTER 400 WEST CAPITO~ llTTle ROCK. ARKAN5A51220ll,.193 TElEPHQN(; 501-318-20! I ~AX .S01-37S21'7 , .. ~s NORTH FVTRA\\.l OAIVf. SUITE 1~ FAYETTl!.Vt.l~. ARKANS.\\S 72711~'611 TELEPHON'C! 17Q..HS-201' ,A.It  T .. HS0ZHT 20 NORTH FIFTM STRC~T tLYTh~VfLLE.. ARKANSAS 12315 'l'ELeP\u0026gt;\u0026lt;Or\u0026lt;f f70.71MU8 ,.;., t70-71.2...J.Ott June 26, 2002 CAIU.A CUWMl'.I..S 3PA.ffllt0Uk. \"\u0026gt;.A.. JOlctf ~ #.l.HOlEY~ JL t ,A. JO,-,,._..,.. UJZA.BETH CONIQUO. P.A It o,aUTOtHr.A. LAWS()H, P.A. rAAW C. fOCCMAJlf'. r A, otTTV J, OEMOKT. r .A. L'l\"'NDA M. JOMMSOlf. P.A. UHBW . .SMJJ'11.J'. \"- QJFPOM W, PUJNllTT, I .A. OA.Mct. L t\u0026lt;EtalNGTOH. , .A, MAltYIN L CIALDEAS JI( .COLEHAH\"111'1rnJtfl,O,Oll', a . AUJSO'tril J. C01l)rl'WEU EU.ntt owwt JASOl'I a. lfEND\u0026amp;E\u0026gt;\u0026lt; sivce a. r,a.-ru. MICHA.EL E. S:A.\"'1f'6l' ,::ELLY MU11.Ptn\" M.CQUlEN JQSUHr.MCCAY .a.LEXAtt01.A ,.__ !fl:.AN' JAY' T. fAV.L.01. M.utTJf' 4 \"-AITEN' Re: LRSD v. PCSSO Discovery Dear John: ~006/ 041 B1CY.a\u0026gt;nr, 0~ fOSUH G. NICIIOLS 108.IT T. SIICJTH \u0026amp;YAW A.. 10,..MAW TlMOTllY C. EZEl.L ? . MlQCCt,,L. A1'()._ t:.Aa.EN $ . KALIIEllltT SAIIAH \"'- COTTO\" rf'flL,.lf' A. NONTOOMJtY C.WTEtf :S. IJGGINS At.AHG. BllYAN UHDStT MIT01AM SLO~W KJtA.y\"(-,M fltl( tDDfN(:$ fOff'N f. HlSEl.fCH ,.._ I .S. CLAfUC  WILLIAM L 1'Elta.V Wf\\,1.IAM L , .. trow. JL H.T. 1.AAZnau, P.A. JOtOf C. CHOU. P.A A..0 MCAU.tl'TTA. C:,.llb$TOPkEtt HEt.lER LITTLE ROCK TEL s01 .. n, .. n,. FAX Stt-1:SJU t1t1t~f.~.t11 I am writing in an effort to resolve our dispute concerning your use of the Arkansas Freedom of Information Act to conduct discovery in this case. We received several requests for infonnation from your office on your letterhead signed by Joy Springer. We responded that we would treat those requests as discovery requests pursuant to the Federal Rules of Civil Procedure and provide the requested information in the time and manner set forth in those rules. We have now received a request from Ms. Springer on her personal stationery seeking all the previously requesled information and more pursuant to the Arkansas Freedom of Information Act. l feel strongly that the Freedom oflnfonnation Act should not be used to circumvent Federal Court procedures or to unduly burden the Little Rock School District as it works to prepare for the July hearing in this case. In order to resolve our dispute and avoid our having to seek relief from Judge Ray or Judge Wilson, I will agree to treat the FOI requests we received from Ms. Springer this afternoon as discovery requests pursuant to the Federal Rules of Civil Procedure and provide a response accordingly. Please let me know if this proposed resolution is acceptable to you. Yours very truly, Christopher Heller CJH/bk cc: Dr. Ken James PlAINTIFF1S EXHIBIT 1 .1.-lUDAY ELDREDGE \u0026amp; CLARK (aJ007 / 041 Dr. T. Kenneth James Superintendent of Sch~ Little Rock School District 810 West Marlcham June 26, 2002 RtcEJ\\IE!) JUN 28 2DDl SUPT'S OFFICE little RDcl; AR 72201 Deac Dr. lames; This request is pursuant to the Arkansas Freedom oflnfonnation Act. Would you please provide for review, mspection aod copying the follo~og information: l) all files maintained by pr~OU$ superintendents in Ms. Griffin's office area on each of the District's schools for each of the last fi,,e years; 2002; 2) the minute$ and agendas of the District's compliance committee meetings since January, 3) all disaggregated data results of all school climate sutveys administered during 1hc .last iive years;  . 4) aJl academic award reports for each secondary school for each of the last :five years; years; 5) all senior rank lists by race and gender for each high school for each oft he last three 6} all school semces quarterly reports for each of the last five years; 7) all program evaluations prepared by 1he divisions of administrative services. school services and instruction for each of the last tive years; 8) all master schedule audits for each of the last five years; 9) the current swnmer school enrollment by race and gender; and 10) all minutes and agendas of the Activities Ad\\lfsory Board. May I r~iewthis information by 10:001un. on Monday, July 1., 2002. Thankyou. Sincerely, Terrence Bolden P.O. Box 5980 1acksom,lle, AR. 72076 501-985-4846 vu , .ao , ,.vv .. ..1.0 : .\u0026gt;o rAA ;iu-1. J/0 ;.: ,1 4 1 flUVAY .t::LDREDGE \u0026amp; CLARK .JU'l .26.2002 1006Frl JCttl W 1-JALKER P ~ Dr. T. Kemietb.James Superintendent of Schools Little Rock School Disttict 810 West Markham Little Rock, AR 72201 DearDr-.J~: FROM THE D,E SK OF JOY C Sl\"RINGER June 26, 2002 ~008/ 041 f\".1 This request is pursururt to the .Arlcamas ~ ofIDfvmration. Act. Would you please provide for review, inspection and copying 1he following mfor:mation;- I) all files maintained by previous superixrtendem:s in Ms. Griffin's office area on each of the District's .schools foe each of the last five years; 2) the minutes and age:adas of th~ District's compliance committee meetiPgs since Jamiary. 2002; 3) all di~egated ~ results of all school climate surveys adro:rnistcred dutingthe last nveyears; 4) all .academic a.'W\u0026amp;rl reports for each semndary school for each of the last :five S) all senior Imlk lists by race and gender for each high school for each of tlie w:t three years: 6) all school services quarterly reports for each of the last five years; 7) all program evalcations prepared by the dMsiOJlS of administtati.ve services, school services and insuuc.tkm for- osch of the last five years;  8) all master scbedule andm for eai:h of'the last 1ive years; 9) the cmrent summer sclmol enrollmeDt by race and gender, and IO) an mimrtes and agendas of the Activities .Advisory Beard. 1n ~rdance with the Freedom oflnformation Ad:., this infurroarltJn should be provided within tweuty.four bours. Smee I will be out of town OQ tomorrow :fbr the remainder oftbe week, I am requesting that the itlformanon be made available on Monday moroing at 11:00 a..m. 06/26/02 WED 14:01 (T.VR.\\ :'-10 9~~1 I vv , .o, -vv4 iu . Jo r.a.,. aui JIO ~i4t ~KlVAY tU\u0026gt;.IO::V~t \u0026amp; CLAJ\u0026lt;K JU'i.25,2002 10:06AM .JOI-Ii_ W W~ER p R Thank you fur ~our attention to tlJis request. , ~ ~ ~c.s~ 22osruce Lit11e ~ck., .AR 72202 Telephone- 501-372-3423 Fax - 501-374-4187 N0.463 ~009/ 041 P.2 06/26/02 WEI) 14:01 ITXIRX NO 9lll.1 I lltU\u0026lt;:ltt.L IL , lt.ii\u0026gt;A Y ('n-\") 'IIIL\\.l\"M II- Jll!'Tf\u0026gt;)I. \u0026gt;_,._ ano)I ,._ J!JJDWI. JL. , _,._ J0l.fl..ltU.. ,_..._ 1i-lll'TitY.P,A. Ola\u0026amp;. UUZJ.'I'. P.A. \u0026gt;CA\u0026amp;IL DAYI.S.JL. P.A. JAMSI' C. a,\u0026gt;.a\u0026amp;. JL. P.A. TIIONAS P. Llt042ff. \u0026gt;.,._ JOH)l l\u0026gt;~P- wnox. ,_,__ PAUl.JLIIDIIL\\llm, P.A. u.a\u0026amp;T W .  UBS.. P.A. A wY'CQ.JPP'HISBJ!T. IJII.. Jl'.A. JAIUSS mw UD IL\\MJS. , .A. J . J1Ut.Lff M\"-lCOM. f' -1\\, JAMA .N. SIMPS0\\11. t .A. 1\"\"'1:$N. S,UITO!f. P.A-J. $llltlll~ ~l!U- Ill., . .._ DOMAl.D 11. JIACOJt. t.A.. WD.1.1.AN f'BOMAJ BA.XTO. P.A.. RJ:CILU.D D. TATI.Ol.. P.A. ,osusa. RUUT.JLr.A. EUL\\.BETH ROBBoH M'UUAY. P.A. OINSTOJ'KD 101J.:u. f .A. 1.AOMNDSUTSMITILP.A. IIONkt i. SIIAin. ;_,._ WILUAMM. CaJRIIIJIJ.P.A. lGCJ:IAD. 3 . MOOU. I .A. DLUE 1. WA.CEEY~ IJ,,.. WAI.JDN.oa.m.,.A. ltE'Y!lfA.CJlASS.P.A. WJLUAN A. WA,OOU,L Jk.. t.A, $(Ott J. \\..\u0026amp;l\u0026lt;~t ..... JOJU.T 11. JEAQI. la.. P.A. J. LU aao-. \u0026gt;-4- JAMU C. IA\u0026amp;'.D. JL. P.A. Klll.Y A.. UOlff. ? . A.. scorr a. TUca.\u0026amp;. , .A. GUY ALTON' WAD.I!. ,,.A.. Pl.la C. G,UUHG\u0026amp;.. I.A. i0HlA. JI. \u0026gt;ONE.a. JA PAYJDD, \"'1U'Ofl,P.A. 181J'JU!Y K. HO(\\U. P.A. DAVIII N. CkAJ'. t.A. Ms. Joy Springer John W_ Walker, PA_ 1723 Broadway Little Rock, AR 72206 VIA U.S. MAIL AND FAX: RE: LRSD v. PCSSD Dear Ms. Springer: .t-K.lVAY J:;LDREDGE \u0026amp; CLARK FRIDAY ELDREDGE \u0026amp; CLARK ATTORHEYS AT LAW A LIMITED LIABILITY PARTNERSHIP ..w Jr1dayllrm_eom 2000 REGIONS CENTER oo WEST CAPITOL LITTLE; ROCK, ARKANSAS 72201-3493 TELEPHONE 501.378-2011 FAX $01-376-2147 :7?$ NOJltTH FlJTJtAU ORf\"'E'. avne 10, ,,.~!TTfllli.U:, AJll(AHSAS 7VOMl11 TEU!.JtOlt( fMd-z01t ,u Jt-H$-2,.7 208 KORTH JIJTM STIIUT 15LY'fttEY1\\.L,. A~AM$~$ 7ZS1$ Te~EPHONe ett-1e2-20H ,AJ\u0026lt; t7~712-z,1 June 24, 2002 374-4187 CA.Jtl.A GUJfJG:U $PADtOUll.7..A.. JORN C. n:Jl'DUY  JL. p .A. l0-IIJZAIIITII COlllC:UO. P.A. L QlIST0PHU UW$0N. P.A. n.u, C. WCI.MAN, P.A. B~ l . DMOkY, I .A. L.~J\u0026gt;A M. JOJDiSO)t. P.A. IAMQ 'W. $MrTJI', r-4- CUfPOltb W. N.IJNU.ff, f'.A.. DANIELL Jl'DaJHGTON. P..A. NAllYIML. \u0026lt;:1111.l\u0026gt;AS C.. COLEMAN WESnllOOE, It. AU.Jnt,. CO~L LUNM.OWEI$ JAS'Ot49..~ aauaa.notrE.,.L MIC'llAIU. a. ~IY' lt!U. Y MllllPKY NCQIIUN J0$~\u0026gt;17. HCMY A~OtA A- ltkAN U.Y t. TVl..Oll MAaTIN A. ~'fN'  ~010/ 041 BAYAJIW. DUU JO$Zl'IIG. N1Cli01.S IO\u0026amp;D.TT- SMlft Y A)t A, OOIINI TJMOTRYC.= \"[. MICJIZll.Z ATOR LU.El L JIAUIEll :SAllAJf N, C'OTTOJII nttur   H01'f7!iOMIJlT lll!fflf$.IUGCI?\u0026lt;$ ALAMa. aavAN LDfl\u0026gt;SEY MITCHAM Jt,.OAM DAYY....,. M. U\u0026gt;Df)HH IOIIN F. PESEIUCR orc;OV\"'ID. a.s.cuu: ..-u.J.lAlC L TEllY TU.l.JAJIII t.. 1' A.TYO'M, JW... H.Y. UJIZELEJl.. P.A. 10KIW C. EOfOI.5. P.A . A.11.MCAJ.Llnn JOHii C. ,CNOL..{V_ Jlt. Lm~E ococ TELSH~7~ FAX 511244SS41 fflldl9yOfc.-nt This letter concerns your requests for information submitted June 11 and 12, 2002. We consider these to be informal requests for discovery and have advised the District work to prepare responses within thirty days of your request. We hope you understand that preparation of responses to your requests for information can be time conswning. Giving District personnel thirty days to respond will hopefully ensure that they are not forced to neglect important District priorities. We appreciate your cooperation in this regard With regard to your request for information dated June 11, 2002 to Dr. Hurley, we are concerned that this request relates to the lawsuit .filed by Mr. Walker on behalf of Jim Mosby. It would be inappropriate for the Joshua Interveners to use their monitoring role in this case to assist individual District employees in litigation against the District. Moreover. the Joshua Intcrveners should support the District's effort to provide a certified principal for the students at Southwest Middle School, an overwhelmillgly Aftican-American school. Due to this concern, we have advised Dr. Hurley not to respond to the request until we have had an opportunity to discuss this with you. Ms. Joy Springer June 24, 2002 Page2 Please give me a call at your convenience to discuss this request. Sincerely, ~t~ Jolm C. Fendley, Jr. cc: Dr. Ken James (by fax and mail) ------ ---- ~011/ 041 FRIDAY ELDREDGE \u0026amp; CLARK He'I.So\u0026amp;El. K. F'lUlAY (1911.ltt4)  U~ H. SUTTON, P.A. ON N. ElS\u0026amp;MAli. ,._ P.A. D. ULL.P.A. ES A. DIJTTI.Y. P,A. fJU;OEIJCk f , Uu.t.\u0026amp;Y. r .A, OSCAaE. DAYlS. JL. P.A. JAMts e. Cl.ANt. Jll,. , .A. Til0M.S p, I.ICICP:TT. t .A. JOHN DE\"WEY WATS:OH, f.A,. , AW.. ... BDlll,Uf l1L , ..A. LA.RJt.Y W. a\\11.1tJ, P.A. ,._ '\"OUJFFll158ET. Ja., P.A. JANES EDWAID HAU.11. P.A. J. P.HIUJP MALCOM. P.A.. JAMES N. 5,UIIPSON. P.A JAM~ M. SAXTON. P.A. J, Sh!PW!G JWSSEll. UI, P.A. PO)rr,IAU) H. !ltctn't, P.A. WII.L.lAM TMOMAS BAXTER. P.A. ltlCM.A'l.t'I D. T1'Yt.O-.. 1.A.. J0.11'\u0026gt;4 II. nu-ST. Jll. P.A. EU:t-t-ATll llODDlill '4UU.AY. P,A, CHJJ!TOPHEl mUE1. I.A.. L..Wb HENlUY SWJ'TJL P.A. at08E.AT S. ZHAJ\"Ea. '-' WJIJ.IAM M. CJUm)l lll , .A. M\u0026amp;CHAll S. ll,IOOR'- F,A, l\u0026gt;LtJG: I. \u0026gt;U.CX.EV .. I.A. WALTUM. 851. JU, P.A. \"'VIN A, CA.US, P.A. Wll.l.lAW A. \\VAl)P,J!U. JI.., P./\\. SCOTT I. l..t.HCAl?P, P.A. I.OBllT B. UA(K. JI- P. A.. 1. LEE aaoww. , .,._ IANES C. Billi. 11.. P.A. MAU.YA.. UGNT, P,ASCOTT H. ruao.. p .A. mrY At.'TONWAll'E. f .A.. PJ.lct C. GARl\u0026gt;lfll.. P ,A. TlffllA P. JONU.1'. A.. OA.VID D. WILSON, P.A. J?l'FREY IL MOOll. P.A. DAVID M. GMI. I .A. FRIDAY ELDREDGE \u0026amp; CLARK -.noRNEVS -.T t.AW A LIMITED LIABILITY PARTNERSHIP www.frloay11rm.com 2000 REGIONS CENTER 400 Wl!ST CAPITOL LITTl.E ROCK. ARKANSAS 72201353 TELEPHONE S01-376-2011 YAX 5013752147 '425 NORTH FVTRALl 0ilUVE, SUITE fH F'-YeTTev,~ce. Alll(A~SAS 1210311 T.ELEPHONE \"'71-,\u0026amp;05'-2011 F,.X 1t-t9'3-z,a7 201 NORTH FIF'TM STR,~tT ILYTHfVll,,1.E. A,t.UNSAS 72.215 TELEPHONE 870-TU-2891 FAX 17G-74!12'-1tHI June 24, 2002 [] Copy and return withP.O.T. [ J Return P.O.T. only TELECOPY TO: Joy Springer Dr. Ken James 374-4187 447-1159 FROM: John C. Fendley, Jr. MESSAGE: See the following re: LRSD vs. PCSSD. C.UA Cl/llllEU SPAl1'llOOR. 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MJCHELU.-.TOk KAJ.SJrf s. HALBD.J' SAIWI M, COTTO,, t-HlUt a. ~OJlilC~\"'r WS1EH !. .RJGGl\u0026gt;ll Al.AH G. AYAW 1..n'DiEV NrTCH.AM ~LO~ 'CRA\"YYAM M. i:mln:IC!:. JOHN f . PEISEJUCH OTCO...,.at. 'B.I. ~ WU,.UAM L T!JtKY WfUlA.M L FATTON, JL H.1, ~UIIII\u0026lt;. P.A. ,OJI)\u0026lt; C. tel10LS. P Jo. A.I). MC,.1.1.lfflk .JOHN C. FENCL.I!\\' , .IA:. LITTLE 11.0CK T\u0026amp;l. H1ITilll21 ,AX S1\u0026gt;1 -liUNt1 fe.ifley0fc.r,et CONFfDOfflAIJT)' NOTE: TM inf-01;0,,;,, lilisfoulJrtll,,_llrlJ/ iJ /~1-,pri\"\"ttei and cOftfld-'ol lwftJfflt11io,, f,i1111dld \"'\" for lilw ,,., q,,.. ldMd\"I o, .,,n,y ~ HfJW. J/!Mrmdtraf llti.s ma:rtq;r is mw ,~ ~d ripienJ. 10\" are trerd,y ,rQlijlo:J rlt4r o,u, d(IJetn(notlon, Wtrilnuioo or a,,_y qf lht: tnuumiltal U strialy proltlblted. Jf)'O't ,....;,,ethi, uruuflliJm/ ;,,,,..,, pJns, i1010\u0026lt;1Potdy-i/J,\"' f1i, 1d\u0026lt;plto,,c. .,,_,~.,,, 1J.e.,;~ VMSlltitlal to..: o\u0026lt; 1N:ebtN,11ddrcs..., Iii Uolu::dSUUc Po,10/ Suvicc. 71,anJc you. F:~\\10IIMS\\l'AXll'alef\\:prioi.,..,;.,.....,., .flUDAY ELDREDGE \u0026amp; CLARK 06/24/02 MON 11:53 FAX 3432 ********SSSSSSSSSSSSSSSSSSSSSS *** MULTI TX/RX REPORT *** ****************************** T.l/RX NO INCOMPLETE TX/RX TRANSACTION OK (1) 93744187 ERROR MP~CNF.J.. tC. PllbA ( ,1,n1!11JI w,v; ..... ,L iunu . t-.A. DVIIOM M. C,JJIIIIJt JL 7.A. JCIUU. Ul!U..,,A. J11,,-r.,.  . U\\ffTAY. r A Clli:.Klc;:\u0026amp; J , v,:sa: ~Y. I .A. tnCAt! tJAWIJ. JI. . I A.. J\"\"f-~ C Q , fltilll\u0026lt;., , . r.A. 'l'rt(I~--$ \"  J..#JC)l!T:. .A. JOUM Dli\" WAnnw. ,.,.. PAV\\. If. UCtnlA.M m f.A. L4JUI.TW,ll\\l~P.\\.. A. w,a~lfP' Jrttt.t9E ', ,n., ,-. Jri . JAllfU CnW,ULD H!'ll:a,s, ~-\"  J. r,ow, MALCOM, \" \"  J,a.MC., ~ - :CMPJn)II, , ,.\\.. JAMU W. !;.if(IW, l'.A. J. $HUHP.R\" ldJ.ilr.J I., ut, .. ,A, OON.\\LO '9, a..OON. .,\\. \"1LU)\u0026amp; f.t(JM~ (I\\J:'f'e., r.,\\. 1.u:uaatt b . 1'11Vt.(U , , .-. JOJl'J,t JJ. ltlJM$'1', Jt, ,  A. (2) 94471159 OU~Vltnl ,_Oita! MUM.\\Y, P.A. ClllU~TOntUl.ll0J..D.i I .A. UlJM Ut1Ni1.n .s.MJTN. t .A. KOn11T 1, iMfEll. P,._ 91fll.UAM N, .C:._,fJlN JU. f ,A, MtCIIA.1. $. -.uUK.. P.A. OfANE s. wu;gy. P.A. 1114.l,,~N. lflltLut. r.A. U:YIJI I\\. :M!li, P.A WU.1..1AM A,. WAeDE'U., Ja... f'.A. S:C'O't'f I. C..ftflf'CUTEt., l',A. llOHIL1 I . lf.\u0026amp;OI. IL. P.A. I . Lt l\"JW7f. , .A. JAMA.ti ~  ._KU. JR., P  Jt,tt,kll'\"I  UC\":MT, P. 11,. u:aTT N. TIJQCJ'.a, ..... c:vv t.TON w\"ot. t .A. PD.ICF.. r.. ~DMF.X. ,  TOWIA ' . iowr;S,, )' A., l\u0026gt;AVlf1 r,, WU..fON, I\"  ltfi\"-tY n. 114(\u0026gt;(,1,.._ V.I\\. \"'\"~u, M. C\" r A , FRIDAY ELDl1EDGE \u0026amp; CLARK ATTORNEYS AT I./IW A LIMITEll llABILITY P\"lliNERSHIP www.Wdarfirm.cofft 200a fttGlONS t:l:NTel't ,oo WliST CAPITOl Llr(LE ROCK. ARKAIISA$ 7:!201-393 TELEPHONE 5D1-J75-Z011 rA'/C. So1.376-2147 ~a.\u0026amp; NoltTH F\\IT1'AU C,AlVE. SUITli 111.S ,-..,fTTfv1u.c . ..,,_KA.NISA$ 1no3-   11 T!I e:P'4DNE OHt,S-2011 'AX 470.tDS..atd 291 -TH Flf'TH STllET 91.YNeVILLE, ARKANSAS. 72315 T'l,,tt\"'10NC 10-11.JJHD ,uro-nz.z.,, June 24. 2002 [ J Copy and return with P.O.T. [] RetumP.O.T. only TELECOP.Y TO: Joy Springer Dr. Ken James 374-4187 447-1159 FROM: John C. Fendley, Jr. MESSAGE: See the following re:~ vs. PCSSD. !:AM.A C\\INWl!U IMIIINOII\u0026amp;, P,A, JUffff C. fl:.\"l'IOLCi  .t'- P.A. .OMAN CUZ. ... L'TII CUNllil.lO, , ,A, J.. QfllSTOfREJl V.Wi()fl( , P. A. ~ow, C IIICCMAN. P.A. ~ltTTf J. OatOltl'. , ,,._ l,Y?IUIII 'l. JUJINSON. f.A. JI\\MU,  - n1n1L t ,h. (..\"\\,fPl\"IJa.o W. PLW)tl1T. I.A. \\\u0026gt;Af'Uli:t.. L HEJJUfilCSTON. 1.A. NhlLVIN L.. CNIUJa.$ \" C:01.D\u0026lt;A-~ WESTOIOO\u0026gt;:. JL MJ.J,SON J. COUWIU t~UNM. OWE\u0026gt;IS \"'\"'\" a. IW/l)al)I IUJCE: I . 'TtOWlJ.I, MtcHA.EL t. kAPEY 1'.ELLY MU\"INY MD)IJF.fhit JOSEftU. Ma.AV A.I.Z);.-.ND\u0026amp;A. A.. IFAA N JAYT. T.AYU,. MAkTl!II A . ..::,1,sT,.-,I TOTAL NO. OF PAGES INCLUDING THIS COVER SHEET_3_. IF YOU DO NOT RECEIVE AIL THE PAGES - PLEASE CALL BACK ASAP (501) 376-2011 TRANSMITTlNG .FROM: (PLEASE CIR.CLE ONE) AUTOMATIC FAX RAPICOM 200- (501) 376-2147 AUTOMATIC FAX RAPlCOM 200 - (501} 376-6369 141013/ 041 Olll'Aflf ft, CIUltl,; J('tC~ \u0026amp;:., flllt~'\"IWLS IIIOUtltt Y. 5KITII kfAtt A. ,uwM.Ut TIMQ\"fllV L'. e:i.eu .. T. lliNC:ucu.u ATOii!. K.tketf :.. lfALOl!A.T t\u0026amp;IA'1 M, l))nUN r1nur ,. MOl'CTUOM[J.Y ~'ff7fl'Clt 4, Rlt.G1HS AlAHd. YAN 1.INNUT MJTCMAM S\\.OAM IUl.l'YTA.M-. ~oon,rr.s JOKII r. '\"JlCCU atr.s..a::na. p,J. t:\\.AU. WIIJ.'AM L TEU.T WIU.IAM L fATT'ON. JIL ILT. wUZ.1!1.llt;, M . 101\\H C. El:jfOU.. P.A. ~.l'. MCA .. ~Uf~ll. JOHN C, tE1'LC,t..(.'r, '\" LITTLE oclt Te'L H1a;iJOJ:q~ FA-~HJ44-$:J41 ........ ,a,., . ., .. FRIDAY ELDREDGE \u0026amp; CLARK 141014/ 041 JllN. 24.2002 4!~f't1 JPBN'1.W~ Sill. WN CHILD6 Ms. Sadie.Mitebell J\"OnN 1,4 WAI...J\u0026lt;E:R p ~ JOHN W. WALKER, P.A. Affl:\u0026gt;.aNSY Atr LAvr 17.231'\\acwJwA.Y .l.mI.Z.Rocg;,ARXANSAS 72206 T~Ni (Slll) S7+-37oS PAX (501) 874-4187 Associate Supcrixltcadcnt for Scbool Services I.itde .Reck Sdlool Distria 810WcstMmbam Lin1e Rock, AR 72201 Dear Ms. Mitchell: Would you please provide the following imo.tmation: N0,44S (:J. W:11;\"\"\"_,l) All disaggregated data results ot\"all school c:liinate surveys adrninist~ d~g the 2001-.2002 school year; p I'\"; .. r..:,.,.J 2) All a.c.ademic awards reporu for eac:h secondary school f.or cac:h.oftbc wt three years; and pv-: ,,_~ f'\"' I 3) All scmor raQk lists by race and gaJder for each high school for each of the last three~. I plan to be in your buiJding on Wednesday. I will drop 1'J,' your office on this dKtc to eheck tbc status oftms mformatioa. Thank you for your attention to this request. JCS/ P .2 JOHN W. W'.ALKP Sl!Alll'N C!DI.DS Dr. T. Kenneth James Superiuteodem of Schools Little R.oc:k. School Distrlct 81 O West Markham Little Rack, AB. 72201 Dear Dr. James: JOBN W. WALKER, P.A. Anomr ATLA.W l 723 BICWJW.\u0026amp;r !.muc ~ ~ 72206 TD.BPilon (601) 37~5\u0026amp;  FAX (SO~ 81H187 Via Facsimile )W1e 24, 2002 Would you please provide for review, inspedion and copyine each of the files maintmd by pf\"e\\liogs supeimtendents .in Ms. Griffin's office area on each of~ Distric:' s sc3iools. I will be looking for. tlffiODg other thiDgs, all }'are:nt complamts, individual or group, petitions, letters or atherwi,c, for each ottbe last three years. r 11/0llld appreciate }.(s. Griffin mald.ng these files a.vailable on Wedfles\u0026lt;hy morning arou:nd 10:00 a.m. Th8llk you for your attem:ion to this request. JCS/ P.S_- f have also pxeriiously req11ested that yau provide the mi.mites ml agendas of the eompllance committee meetings since Januazy, 2002. Your cooperation. in al!o makmg these iteins available 011 Wednesdaymommg is appreciaud. 141015 / 0 41 JOHN W. WAI.ltER SR.t\\WN CHILDS Dr. Kenneth James Supermtendent of Schools Liale Rocle School District 810 West Mark.ham Little Rock, Arkansas 72201 Dear Dr. James: l-'.IUVAY. ELDREDGE \u0026amp; CLARK JOHN W. WALKER., P.A. A~AxLAw 1723 B!0.ADWAY I.rm.! RDCX. .AIXANaAS 'i'2206 Tw:mom: (501) 874-8758 FAX (501) 374-418'7 June 21, 2002 [4]016 / 041 OF COUNSEL ROBEl1'1' Md!ENXY, PA DONNA J. McHENRY 8210 HDDmaN RQAD um.z Boa.~ '72210 l'IIO.N11: (SOl) 372-SCS  F.Al(50l) ~ ~ mthemy~11.~ Please provide by return facsimile a copy of the petition by teachers in support of their choice for principal at Central Hi2b School Thank you. JCS/cac - --- RECEIVED JUN 2 4 2002 SUPT'S Orfh.,c J'OHNW. WAI.EE!t sHAWNCBILDS Dr. T.KezmethJames Superiute.D~ af~ols Little ltock School District 810 WestMmxbam Little Rock, All 72:201 De:arDr. James: FRIDAY ELDREDGE \u0026amp; CLARK JOHN W. WALKER, P.A. AmiNB!Arrl.B 1723 BllOAlJWAY Lfm.El\\oQi ~ 72206 Tl!LmlONS (SO'Jj S7 4-3'1S8 'FAX (501) 374--4187 Via Facsimile June~ 2002 Would you please provide to me the agendas and .mi.mtt2s Qf the compliance team ::meetings since 1ammy, 20oz to present. Thank you for your CQoperation. ~i.e .. __ . - \"'lf!.springer~ Ou Beba!f of JQSbua JCS/ @017/ 041 FRIDAY ELDREDGE \u0026amp; CLARK 86/11/2002 12:10 5013242090 .ru-1. 11.2002 10;~ JOli'f W ~ P Fl Dr. FJclmrd Hurley ~rof\u0026amp;manRt~ Lit:t.te RQck SdiooI District 810WestM.arldlam Little Rock, AR. 72201 . Dear Dr. Hurley: JOBN W. WAIXER., P.A. .M'l'ORNiYMLA.W 1723 B1IOAJ\u0026gt;\"7A!' I.mu :aoa. ABIW\u0026amp;S 12.206 ~ ~1) 874-8158 Fil (501) 874-418'1 Juue 11, 2002 14)018/ 041 PAGE 01 I m11 writing to request that you proYide to me tbe names all Distr:ict employees who hold the position of Associate Superirrteodem, ~ Supmm~ Principal. Assistant PrineiJ\u0026gt;Slt Oircctoi, Coordluator aDd Supervisor ittclucfmg their educational baclcgroand and respective certifications. Your aneuiion to thi$ tequest is ap~ r;;~ 1oy C. Springer On Behalf of Josb\\ia ]CS! 06/05/2002 16:43 501-324-2213 JOHN W. WALKER SRAWN QDLDS Ms. Sadie Mitchell l-\".IUDAY ELDREDGE \u0026amp; CLARK SCHJOL SERVICES JOHN W. WALKER, P.A. AlToRNEY A:r LAW 1723 BROADWAY Llnu: ROCX. ARXANsAs 72206 TuU:rHOi-r\u0026amp;(501)27+37S8 FAX {501) 374-4.187 Via Facsimile May 31, 2002 Associate Superintendent for School SCNices Little Rock School District 810 West Markham Little Rock, AR 72201 Dear Ms. Mitchell: ~0191041 PAGE: 0.::/ '. : Ot'CO!.i:-:;;~~ ROBERT McHENlI~: :: ... OONNAJ. M~Jit::-!l  8210 Hl!l\u0026lt;DERS()S ;..:;,:.: Llrn.E Roc1'; Altl\u0026lt;A\u0026gt;I!;,\\$ 7:.::.: ! PHO!\u0026lt;: (SOl) ~2-~A:lS  FAX (Ml) 372-:\u0026lt;~'. . FM.t.ii.: mchcnnd@.1'\u0026lt;0;, .~,- Would you please provide the following information to me at our meeting on June 15, 2002: l) the number ofSllldents enrolled by rac.e and gender in summer school for the current school year; 2) the elementary sites for summer school; 3) the secondary sites for summer school including middle scltool; 4) the number of students enrolled by race and gendc:r in summer ~bool fur each of the past three years: (98-99; 99-00; and 00-01) at the elementary and secondaxy levels; 5) the subjects being over during this year s summer school at the secondary level; and 6) the subjects that were offered to students during the years 1998 through 2001 at the secondary level. Would you also please identify the year round schools? Pio.ally. would you please advise whether there are discussions regarding the elimination ofEnglis.h and Math io summer school. I loo.le forward to our meeting. JWW~s 06/ 05/02 WED 16:57 fTl'./Rl NO 8636) VU / .:.0 1 .:.vv.:. .LO: JII .l\"JU. ;)UJ. JI O ~J.4 ( !-\".IUVAY ELDREDGE \u0026amp; CLARK Ill 0201041 11/17/95 14:52 ~IGHT, LINDSEY, \u0026amp; JENNINGS - l'O.l~ t'WVWb A~~:0-94 TU 15:45 US .DISTRICT CLERK FAX HO. l50187Z4612 P, 02 IN TU~ A'1'11 DIS'r!tlC'l' C0~.3.fYR.,  DS'J.'Dtf S'l'Jt?C'l OP .uXAH .ttit~~RkANSM JONUIOIO DIVISION AUG 3 O l994 I ~ PLADl'rtl\"t DBFUDANTS HPPMKPPI MfR OBPIB In tbi action broqht p\\lr~nt to 63 u.s.c. 5 lill, th Defendant have eou;ht a protaoti~o order (docket entry 3) attornay-olient. cowaunicationa batvn the Dafandantt and t.hai~ levyr aftd voul4 protect at.t.orny work prod\\lct troa cUscloure. The latter vo11ld inolud lawyer to lavyu r;,o-unioa.t1ona Dade for th pvpoae of p~epariq and dehndinl the intant litigation. Plaintiff ateadtatly. reita t!l entry ot uch a protective order, pointing to th ArQna .rr1edo11 o~ Intonation Ao~, Ar~- Code Ann. S a5-1,-101 at; mn- (Supp, 1H3), ~ Defendant:' ~atu H tnte of  publia 1ntit\\ltion, ancl t.ha t'aot that th Defend.ant b\u0026amp;ve INlan aua4 1A their official vall a inlivid\\lal ca~o1t1aa, and body of Arlcana~ c law asdret1inw th ron ~nd tha ubject ot Detendan~' p\u0026amp;-opoed order~ l : PLAINTIFF'S i EXHJBIT ,f 2 i .1.-.IUVAY l::LV.l{.t:;V~l:: \u0026amp; (;LAf\u0026lt;K 11/1?/95 14:52 AL'G-30-94 TUE JS:46 ~IGHT, \"LINDSEY, g, Je-a-m-GS U S [STRICT CLERK l t-0. 134 P003-1306 1 FAX HO, 15019724612 It :tni~ially, it ~~ N detU'Jlina4 which rul .. ot law the co~a:t -ho~l4 apply, . ~1 ~, \"oup~ in 14rl Di~iliJt ~o~ by  to1\"JDr stat un1veraity preidant ovor hia I f   traatment by the Board of ~uea of ~id inatitution, b tor ! rm ot rights protected ~Y tlle 1av1 nd contitut1on of th vnited state,. pur1uant ta 42 u.s,c. I 1113, f84eral law control queetion ot priv1la;e. l91Jio Y, Pqvall. 773 P.ad 191, 11, (8th Cir, HH), 99rt. denied, 6715 U,S, 111' (U86); XQY,ngblqpd y. bm, 112 1.R,P, J43 (C,D, C.l. 1985). 'l'Jlta i tn even ~hr  pendnt or euppl...ntal jvied1otion o\u0026gt;.ai.a 11 jolne4 vith  fe4aral c1u. BlntD Y, ui,n 1eaart11 Mea1ttl, 1,1 ,.a.D. 115 (S.n. %ova 1t92). Work product protection 41varaity oaae, lt0:0lr1i Y, Chiqapp  B,I, TJ:DDIPe SP 1aa F.~.D. 1$5 (B.D. Xn4. 1Pt1). 'l'he attorney-client privil~ i  an incliapenllbl tool of juatioa, and ia tro\\lftded in the tederal co,mon lw. lb ori9inll go back vell before th 1100' B4l1nt tvn1r1, Inc. . . Y, IA@Eisan All UI.QeiaSJ.on, 320 ,,ad ,1, (7th c1r. 1163). '?he benefits o~ tbe pr1v1199e, both to Cha adatniatrat1on or jutic and to the attornrcU.n~ r1t1onahip, are o abundant  to neacl no reoit:a.tion br. it 1 theretoz- held that the J10tion i GMN'l'ID  to thoH eoaaa\\U\\ioation bat\"'n attorney and glient thac . oomo under tha attornayclient 2 ta] 021/041 P.03 '  vv , .ao , ,;.vv.:. J.O ; 'i U riu.. ;:\u0026gt;UJ. JI o -' 1 4\"/ l'lUVAY .cLVKEDGE \u0026amp; CLARK 11/lF 14:!;\u0026gt;.S Wl-\u0026lt;1bHI, L.!~T .s. JCNl'HN!;;\u0026lt;:;\u0026gt; NV, .l,..;\u0026gt;\"f . 30-94 TUE 15:48 US DISTRICT Cl.RK FAX 15019724812 wvUCJ a .. llri,ll;d..JH;.IS;U..X.....J~.1.DQIILJ~~.llb....AU.~., 17 r.a.o. ,st (D.c. 111. 1111). Tha otion 1 aleo GRANT.D  to _into;-ation, letter , aorenda, andth lite .generated 3ttoral-Y work pro~~ot. HiQWQ Ye %A:il9', lat U.S. 4'5, 67 s.et. 285 (1147) r- .Kw i'WDIYllt !MUe AP, y, Pala -Ab tntxi 132 P.R.D. JOl (S.D. fl\u0026amp;. 1990). Th real ditticulty, ot course, con, in deterain1n9 vhther a 9l~an it tall within or vii.bout on ot th two p~otecte4 cate9or1es. cwnl are ~lld upon to u their aound j\\ldq111Cl1lt, and to conaUlt the court vhen and it bQne noo dispute ari  a in th CO\\lrae at dieoovry abo\\lt it- that r po aibly protected. 4 ~ord ut be 9ivan to the Arkan authoritie that have touched on tha issue of privilege and work prod~ct i~ the context ot ,oa requets. tn 11s:s::1n1m:t4qa y., ,S:ity pf Little lesk. 198 Ark. 219, 76i s.W.24 ,o, (1981), the Arkan suprua court held that the Arkan rula of the attorny client privile,a d14 not c:raate u eleaap~ion ~o the Ar~anaaa rree~oa of Intoraa.tlon A~t. The ca heavily ralid on ~, Plai~t1tr, C1tx A( l1YUy1ll9 y, Ym1rli, 304 Ark. 179, 801 s.W.2d 275 (1910), bld, inter alia. tb\u0026amp;t le9al aemoranda prpared tor the City tor 1i t1;at.1on purp0 Ver'\u0026amp; not exeapt trom the Arkan 7raedom ot .Intonw1t1on Act. Attorney vork product vae th~ cthc'1oee4, 3 14)022 / 041 P.04 vu, .:.0 1 .:.vv,:. .1.0 : -.v ri\\A .\u0026gt;u.1. JiO l:.l4l 1-l\u0026lt;lVA~ l::LDREDGE \u0026amp; CLARK 11/17/95 14,53 .IJRlr,T, U~Y, '\u0026amp;. Jt:NNll'b3 NU  .l.:\u0026gt;\u0026lt;f I\"'~~ At'G-30-94 TtJE l5i47  U S DISTRICT Cl.ERi FAX NO. 1501972'4612 p, 05 - Th court fincU ls:\u0026amp;IICI and \"1t.lUP491 ar, :not ol.ndin9 on tl'ab Court Ad aven 1t th cowt apwaaa that tboy ua, tll cloiaiot)a do :,ct ro:-aclosa this Cou~ frOll 1u.1nq an . orclor proteClting etto~nY-oliant. cc1au.nicatio11a or attorney worJc produot. (See Ark. Coda AM, I a5-1t105Cb) (I), which axupte tro11 th J'Oll dooaenta vhicaa are protaote4 ttoa lliaclosura by orclr or rule ot court. ) It i 1ntoraatinv ec, note that 'Louiiana' Public Reoorda i..w poitioally exeapea attorn.~ vcr~ produc,t tro it tel'II, ~ut no~ aatorial protected by tha attorney~Uan~ privilege. S T111se y, LQui  iana tans, t SXplQ~tilpn, 805 F.S~)p. 315 (M.D. IA. 1992). tn exllllli~in; tha ~kan1ae authori~iH, it is rea411Y apparent that the tocu and concorn ot tbe ArJcaftU State oow:tu 111 with the 11hol l)ody of ArlcanH law, anct tile function of Arkanaa law in the affliz or kk.an oi~iaen Thie fade.al court, Vhil 8ituatoll within Arkanaa, \"t navei-thel.eH h11ve a it pr!aary concern ~ eftiaiant: adainitration ct jutiaa and the tair resolution of federal olai rau .. eole br the psrti litiiant in federal oourt. Th111, ~darl lav and prooedllr auet. )a appli~. 1'1' IS, 'nllRll'OU, OIU\u0026gt;DJD that 1111 papu1, ntar1al.a, and othar thinp colla~ted o~ praparect by th ,-rt1 or their ~prnbtJ.vee in anticipation tor trial, or otheni wiel\\1n th aoope of th r..ieral work product: ISoatrin, ancl all. pri vata ooamw,ications of anr kind between th d~andant anct their 0o~nl Within the ; racogni1ed bcundari ot the 141023 / 041 vv, .Q , .uu~ ~u - ~v r,u,. avi J/0 ~i4/ ~KlVAX tJ..lJ.lti,;VGt \u0026amp; Cl.AJ\u0026lt;K 11/17 /95 14: 54 WRIGHT f 1..lNLJ::c. Y, ;s.. ; ttiN 1 No:\u0026gt; r...i  .\u0026amp;.-\u0026gt;'+ . P!JG-30-94 TUE 15:48 U tDISTRICT CURI FAJOIO. i50J972481Z . P,06 -~raar-oliant pd.vilo9ca, ~ h~oy ~ro~~t:od t~o. cUaooviy . \\Jy '= oppoainq pu-ty or l'elaa to any ~Ud pa.ty, ucpt by order ot thi eo~rt. 5 1410241 041 V0 / ,\u0026amp;.0 / ,\u0026amp;.VV,\u0026amp;. J.0 : 4J. rAA :\u0026gt;UJ. J\"[!j :!147 FRIDAY ELDREDGE \u0026amp; CLARK l-N THE CilCUIT COURT OF DALLAS COUNTY, ARXA.N'SAS 141025/ 041 ,.,,,11-r-- '-.J'---I-STAT OF AFJ\u0026lt;ANSAS PLAINTIFF vs. CIVIL No. 92-100 HABILITATION CENTER, INC. an Arkansas Corporation d/b/a MILLCREEK OF ARKANSAS; MILLCREEK MANAGEMENT, INC., a Mississippi Corporati~n; DR. JAMES 0. STEPHENS, M.D., (in his individual capacity, and in his official capacities as President and Chainnan of the Bca:d of P.abilitation Center, Inc., and Rehabilitation Centers, Inc. , and as Chairman of the Board o~ Millcreek Management, Inc.); JOSEPH L. STEPHENS, (in his individual capacity, and in his official capacities as Vice President of Habilitation Center, Inc., Rehabilitation centers, Inc., and Millcreek Management, Inc.); BILL SIMMONS, ( in his individual capacity, and in his official capacity as President of Millcreek Management, Inc.); and WAl'~DA MILES-BELL, (in her individual capacity and in her ofticial capacities as Executive Director and General Manager of Millcreek of Arkansas and Vice President of Millcreek Management, Inc.}; DEFENDANTS ORDER on this 31st day of January, 1995, there is presented to the Court the Motions :for Protective Order filed on l:\u0026gt;~half of defendant Habilitation, Millcreek Schools of Arkansas, Inc. and William sutto~. The Attorney G~ner~l ha?ing f~lly responded and the Court being sufficiently advised, having heard arguments of counsel and having fully considered this matter IT rs NOW, THEREFORE, CONSIDERED ORDERED AND ADJUDGED: The office of the Attorney General served a request for records under the Arkansas Freedom of Information Act, .au- Code Ann 25-19-101, et seq., (hereinafter FOIA) upon Mr. William Sutton, custodian of records at the law firm of Friday, E1dredge \u0026amp; PLAINTIFF'S EXHIBIT . 3 - -- 141026/ 041 Clark, attorneys for the defendant Habiiitation Center, Inc. d/b/a Millcreek of Arkansas, seeking the law firm's ~iles relating to Millcreek Schools of Arkansas, Inc. {hereinafter Millcreek Schools) and Habilitation Center, Inc. (hereinafter Habilitation). The requests speci.tically seek \"documents, notes,: pleadings, memorandum [sic)_-, work pa:2ers, attorney work papers includinci work product _p::-epc.;:::-e.i, ge~.?::-at~d or re1ai:-ed -to any ~ark done by your fi:r:m for Habilitation Centers, Inc. [sic] or Millcreek Schools of A~kansas, Inc. in State ot Arkansas v. Habilitation centers, Inc., [sic) CIV- 92-100 in Dallas County, Arkansas.\" The Attorney General served similar FOIA requests on Habilitation and Millcreek Schools of Arkansas, Inc. Jurisdiction and Venue The threshold issue for this Court's determination is whether the Court has jurisdiction to enter the protective orders sought. The plaintiff selected the Dallas County Circuit Court in which to bring the pending case pursuant to Ark. ~ Ann. 16-13-201 and venue was established in accordance with Ark. Code Ann. 16-106- ~CJ.. ( .Cl)  .:~r.::.:.c!i.cticn-i.: .this Ccu:rt was t.t1en pro~r; ,:inc! this Court retains that jurisdiction and control over the case pursuant to the a!oresaid statutes. Al though the Freedom of Information Act establishes a separate authority under which information may be obtained under certain circUJ11stances, there is no question but that a FOIA request to a law firm representin9 a defendant in a pending case within the jurisdiction OI this Court is so intertwined with that pending case as to fall within the jurisdiction cf the court. 2 I: 1\".Kll\u0026gt;AY .t:;U,Kt;l\u0026gt;li.t \u0026amp; l.LA.Kll. 14JU27 / U41 If the Attorney General akes a FOIA request of a totally separate entity, that .separate entity would not be subject to the jurisdiction of this Court, and the Attorney General would be free to pursue its FOIA request in -whatave:r jurisdiction lUay be perMitted by law. The Attorney General has not named Millcreek Schools of Arkansas, Inc . as a party defendant.  The Attorney General has made reference to \"Millcreek School of Fordyce, Arkansas, a separate entity owned by defendant, Habilitation\" in its first amended complaint. The Court is convinced that Millcreek Schools of Arkansas and Millcreek School of Fordyce, Arkansas, both allegedly owned by Habilitation, should be considered to be the same entity as Habilitation d/b/a Millcreek of Arkansas, and accordingly Millcreek Schools of Arkansas is not truly a separate entity but rather it is an integral part o~ Habilitation. Therefore it, too, comes within the jurisdiction of this Court. In holding that this Court has jurisdiction and is the proper venue to resolve the issues relating to the FOIA, the Court ackncwl\u0026amp;ociges -~'lat  i.: is inapp1.~pric1te for 'Che threat of pocential enforcement in another forum to hang over the defendants as they prepare for trial, and it is in the interest of judicial economy to have this court handle all issues relating to the 111atters at hand. Venue is proper only in the circuit court of the judicial district in which the entity is located when the de~endant is an entity which is a private organization even though supported by public funds. Here, all the FO!A targets are such private 3 I I I I I I I .l:'.tUJJ,H .t::U,.t\u0026lt;J:.J.)1,J:. \u0026amp; I...L,UUI. ~028/ 041 organizations resisting the turn over of information pursuant to the FOIA, The 10ere fact that the Attorney General itself is located in Pulaski County and is a state agency does not create venue in that county in these circumstances. standing The detendants' attorneys seek a prot~ctive order in order to protect the attorney/client privilege being asserted on behalf of their clients which include the defendant Habilitation. Habilitation has standing by virtue of being a party litigant in the case brought by the Attorney General. The law finn of Friday, Eldredge \u0026amp; Clark has standing to seek a protective order since it represents HabilitatioTI. Habilitation is Not Subject to the FOIA. The major issue is whether Habilitation center, Inc. is an entity subject to the FOIA. If it is, its attorney's files may be discoverable under FOIA. It is settled under Arkansas law that attorney work product and records are not per se exempt from FOIA disclosure under Ark. Code Ann. 25-19-105. See Scott v. smith, 2-92 -Ark. 174, 728 S'.W.2d 515 {1.987), Arkansas Highway Department v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988) and City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990). Although a court hearing a FOIA enforcement action may not issue a protective order under that section to protect in~ormation otherwise subject to disclosure,1 nevertheless, the trial court is 1Ark. Newspa~er. Inc. v. Patterson, 281 Ark. 213, 262 S.W.2d 826 (1994), city or Fayetteviile v. Edmark, supra, at page 193. 4 ll)029 / 041 able to create an exemption !ram the FOIA as authorized by~~ film. 25-19-105 (b) (8) since the limitations on protective orders do not apply to trial courts. The threshold issue, ho--wever, is whether FOIA even applies in the situation before the Court. In order to make that detennination, the Court 1nust decide whether the materials sought by the Attorney General are public records within the l!leaning of the FOIA. 2 Habi1itation is a privately owned for-profit entity receiving Medicaid funds; it is not a government agency. Given the facts of this situation, it :may be an \"other agency\" subject to the FOIA because it is \"wholly or partially supported by public funds or expending public funds.\" Courts have enforced FOIA requests to particular private entities when they are \"Wholly or partially supported by public funds or expending public funds. 1 This Court has also considered a number 2Ark. ~ Ann. 25-19-103 (1) provides in pertinent pa:rt, \"PUblic records means writings, recorded sounds, fil1ns, tapes or data, compilations in any form required by law to be kept or otherwise kept and which constitute a record of the performance or lack of performance of official f~nctions which are or should be carried out by a \"public official or an employee or government m:: any other agency wholly or partially supported by public funds o~ e::9endinc;: public funds , .n  (emphasis suppliedJ 3See North Central Association of Colleges and Schools v. Trout :srothers. Inc., 261 Ark. 378, 548 S.W.2d 285 (1977); Arkansas Gazette company v. southern state College, 273 Ark. 248, 620 s.W.2d 258 (1981), app. dismissed 455 U.S. 931 (1982); and Behab Hospital Services corp. v. Delta Hills Health System5 Agency. Inc., 285 Ark. 397 687 S. W. 2d 840 (1985). The first two of the cited cases indicate the factors that must be present before a private entity will be subject to the FOIA. First, there must be direct publ.ic funding. Secondly, there must be indirect public support. Third, there must be public concern with respect to the organization's activities. The primary source of funding being governmental and the serving of a public - purpose_ . Day subject the private organization to the FOIA. Rehab Hospital Services Corp. supra. Recently the Arkansas supreme court has declared that public funds 5 .HUVA~ ELDREDGl:: \u0026amp; Cl.ARK Ill 030/ 041 of Attorney General's opinions which are not binding as precedent, but which are instructive. The Attorney General has opined that \"when the activities of a private organization and the government become so intertwined, the private organization may well render itself part of the state for [FOIA] purposes.\" Ark. op. No. 83- 163. In that opinion, the AG opined that the mere re.ceipt of Medicare and Medicaid funds by a private nonprofit hospital or a for-profit investor owned facility would not trigger the FOIA. More recently, the Attorney General has opined that the mere receipt of public funds is not in itself sufficient to bring a private organization within the FOIA; rather, the question is whether the private entity carries on public business or is otherwise intertwined with the activities of the government. Ark. Op. AG No. 94-131 (May 13, 1994), citing City of Fayetteville v. Edmark, supra, (1990) and Op. AG Nos. 91-131, 94-154 and 83-163. Here both Habilitation and Millcreek Schools do not conduct their activities with or ror the benefit of or in the place of any public agency. Neither is established by lav. Neither is any more regulated -or supervised 1:han hospitals or nursing homes or schools. No govermnental authority is at Habilitation nor is any Habilitation employee located in any government office. Habilitation deter111ines the programs for the chil.dren, not the State. include only direct public tunding, not indirect support. Sebastian City Chapter ot the American Red cross v. Weatherford, 311 Ark. 656 (845) S.W.2d 641 (1993). 6 ~031/041 Habilitation and Millcreek are engaged in the private rendering of Medicaid and other Medicaid eligible services to private individuals. People performing these services are not public officials. Habilitation is providing Medicaid and other services pursuant to a standard form contract, not making public policy. Even though all or a substantial part ofits incoine is derived !romthe government, it is being paid only for services and is not being subsidized as an extension of government. These facts do not lead to the conclusion that Habiliation and Millcreek are so connected or intertwined as to bring them within the purview of FOIA disclosure. After evaluating the facts and in light of preceden~, the Court finds that Habilitation and Millcreek are not private entities subject to the FOIA. While the l.ine limiting the reach ot FOIA is not bright and while the FOIA is to be liberally construed for disclosure of records in the public domain, Ragland v. Yeargen, 288 Ark. Bl, 702 S.W.2d 23 (1986), the tacts in this case cannot justify a conclusion that \"public business\" was or is being conducted by Habilitation. The intent of t.._e legislature was to expose the per.formance o:f public o:ificials and or the decisions that are reached in public activity and in making public polic;y. While the public at large as electors do have an interest in how the Medicaid progral!l is being conducted and should haYe access to all agency recoxds relating thereto, including those supplied by Habil.itation under its contract, they have no overriding interest in how a private service provider renders its services to private 7 (OJ..!/041 -  individuals. There silllply is no legal precedent or suggestion that it was the intent of the legislature to subject the private activities and all licensed entities and individuals to public scrutiny under the FOIA. Thus it is the decision of this Court that Habilitation is not subject to tbe FO~A; Friday, Eldredge \u0026amp; Clark is Not Subject to the FOIA Additionally, the court also finds that Friday, Eldrecge \u0026amp; Clark is not subject to FOIA. It is an obviously private entity receiving no obvious public funds, and its clients are not a public entity. The court believes that the Attorney General I s FOIA request to Habilitation and Friday, Eldredge \u0026amp; Clark is discovery abuse. Defendants and their counsel are entitled to protection to 111aintain the integrity of the discovery process set out in the Arkansas Rules of Civil Procedure. Unauthorized access to attorney/client or attorney/work product privileged material can deprive defendants of due process. Accordingly, the Court finds that the Motion for Protective Order to protect the FOIA requested material from Habilitation .should be and hereby is granted. Additionally, the protective order is extended to Millcreek of Arkansas, to Millcreek Schools of Arkansas, Inc., to Mil'lcreek School of Fordyce, Arkansas, and to Friday, Eldredge \u0026amp; Clark as attorney to the extent of any materials in any way related to this litigation. The Attorney General may, if it so chooses, amend its complaint with respect to Millcreek Schools of Arkansas, Inc. if it determines that amendment of the name of the defendant is appropriate. -- 8 14] OJJ/ 0 4 1 Ark. Code Ann. 25-19-l0S{b) (8) Exemption The Court rurther finds that even were the defendant subject to the FOIA, the exemption provided in Ark. ~ film 25-19- 105 {b) (8) which expressly exempts \"docwnents ~hich .are protected trom disclosure by oraers or rul.es of court\" would apply in this case. As the Supreme Court stated in . City of Fayetteville v. Edrnark, su~ra at 191: A trial court has the inherent authority to protect the integrity o! the Court in actions pending before it and may issue appropriate protective orders that would provide FOIA exemption under 25-19-105(b)(8). This Court having underlying jurisdiction over the underlying litigation finds that a protective order should be issued to restrict disclosure ot documents being sought pursuant to FOIA. If there is any subsequent review by any other circuit court - considering related FOIA requests, this protective order is issued specifically within the provisions of Ark. Code Ann. 25-19- 105 (b) (8) to protect from the FOIA materials which otherwise might be disclosable. Id. Other Motions The derendants' Motion to Quash Notice of Depositions is governed by the Written Agreement of the Parties provided to the court in their joint Motion for Continuance. Accordingly, depositions of parties may begin again only as set out in the Agreement. The Attorney General's Motion to Strike Affidavits will be considered ~y the Court when -it receives the plaintiff's Response to the Motion !or SuJ1U11ary Judgment. The defendants' Reply to the 9 ~ U;J4 / U41 Attorney General's Response to the Motion for SWDl11ary Judgment, if any~ will be due within ten business days thereafter. The Attorney General has filed a Motion for Default on Attorney General's Motion to Strike. That Motion i -s denied. Conclusion . IT IS THEREFORE ORDERED that the defendants' Motion be and it hereby is granted. It is further ordered that a protective order be and hereby is issued over all materials sought by the Attorney General under the FOIA unless they are otherwise discoverable or admissible into evidence. The Motion to Quash Notice ot Depositions is hereby granted until otherwise provided in the agreement o~ the parties. The Motion for Default on the Attorney General's Motion to Strike is hereby denied. IT IS SO ORDERED this 1995. ~ day of deJn ~ ~~~ 10 I I I; I UO / l/J / lUU l .10 : 44 .l:iU. :)Ul J 7 tS 21 4 7 FRIDAY ELDREDGE \u0026amp; CLARK Ill 0351 0 41 IN THE UNITED STATES DIS!RICT COURT 1N TIIB EASTERN DISTRICT OF AIU{ANStjJ/tt PINE BLUFF DMSION ~~iL.,;,,L::J:t:~~ ROGER HEATiiSCOTI PLAINTIFF VS. NO. 5:00-CV-00333-WRW UNION PACIFIC RAILROAD CO. DEFENDANT ORDER For the fC3SOQ.S stated in a telephone conference yesterday, the plaintiff's motion (Doc.5) for a protective order is GRAN'IED. Accordingly, defendant must not compel the plaintiff to attend the physical examination scheduled for Februaxy 14, 2001, with Dr. Baskin, M.D., and it must not compel the anendance of the plaintiff at the functional capacity examination scheduled for February 19, 2001. Further, plaintiff must not be disciplined for failing to attend these examinations. I rely primarily upon Smith 11. Union Pacific Railroad Co . 878 F.Supp. J 71 (D.Co. J 995) and Vicary -v. Consolidated Rail Corp., 942 F .Supp. 1146 (N.D. Ohio 1996) whlch seem to be well reasoned. Unlike the plaintiffs in Calvert v. Trans World Airlines, 959 F .2d 698 (8111 Cir. 1992), the plainti:ffhcre unquestionably 1w a separate, independent cause of action under the Federal Employers Liability Act (\"FELA\") 45 U.S.C.  51 et seq. l believe discovery in the FELA action should proceed under the standard Federal Rules of Civil Procedure. and that these n.tles are not tromped by the defendant's medical examination rules (via the Railway Labor Act 45 U .S.C.  151 et seq.) In fact, under the theory urged by defendant. a railroad could severally hamstring a FELA plaintiff-with company regulations. Defendant contends that 1his order is in the nature of an order \"granting, continuing. modifying or dissolving [ an J injwtction'' which would be subject to an interlocutory appeal under ~ PLAINTIFF'S i EXHIBIT i 4 I 287 U.S. C.  1 992. I do not know what authority I have to enhance defendant's right to an interlocutory appeal, but to the extent that I have such authority, 1 grant it: in full. --1+ IT IS SO ORDERED this/ tf/c1ay ofFebnwy, 2001 !~~ UNITED STATES DISTRICT COURT nus DOCUMENT DflcRED ON DOCKlT SHEET 1H CCMPl.lANCc WITH RULE S8 ANOIOII 7,ttJ FflCP ON /b(a, for BY ~L I ~U;J6/ U41 ..' . ,. ... . - .., , - .,; , - v ,...   V'  -. v A ,-. V V .a. V , V - -1,. \"t I rl\\.J.V/\\..1. .C.J.,J.J~UU.C. ' V.\u0026amp;...l\\llA IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DMSION ~UJ7/ U41 LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL DEFENDANTS INTERVENORS INTERVENORS MRS. LORENE JOSHUA, ET AL KATHERINE KNIGIIT, ET AL MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR PROTECTIVE ORDER AND FOR EMERGENCY HEARING LRSD seeks a protective order pursuant to Fed. R Civ. P. 26{c) to prevent unduly burdensome and harassing discovery being conducted by the Joshua Intervenors (\"Joshua\") via the Arkansas Freedom of Information Act (\"FOIA \"), Ark Code Ann.  25-19-101 through 25- - 19-110. Rule 26(c) provides: Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith confctrcd or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause 5hown, the court in which the action is pending or alternatively, on mattel'S relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, opprcssio~ or undue burden or expense, including one or more of the following: ( 1) that the disclosure or discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions. including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; ( 4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain mattera; * *  r .tu u Al .ta.u .iu:.uur. a. ~ Lt\\.KII. There can be no doubt that Joshua is using the FOIA to conduct \"discovery.\" Accordingly, 1his Coun should exercise its power to control discovery as contemplated by the Federal Rules of Civil Procedure. 1@0J8/ 04l The fact that Joshua is using the FOIA, rather than the \"'Federal Rules of Civil Procedure, to obtain discovery does prevent this Court from issuing a protective order pursuant to Fed. R Civ. P. 26(c). The FOIA clearly contemplates protective orders being issued to prevent the FOIA from being used to conduct discovery. Section 25-19-105(b)(8) exempts from disclosure \"documents which are protected from disclosure by order or rule of court.\" The Arkansas Supreme Court in City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990), recognized the a trial court's authority to issue a protective order precluding a litigant's use of the FOIA. The court stated: A trial court has the inherent authority to protect the integrity of the court in actions pending before it and may issue appropriate protective orders that would provide FOIA exemption under Section 25-19-105(b)(8) . .. We interpret this section as requiring the circuit court to grant exemption if another court has restricted disclosure of the documents being sought. The FOIA court must give credit to protective orders previously issued by other courts. Id. 304 Ark. at 191, 801 S.W.2d at 275. Following Edmark, both state and federal judges have issued protective orders requiring discovery be conducted pursuant to the applicable rules of civil procedure., rather than the FOIA. See Dr John Mangieri v_ Arkansas State University U.S.D.C. No. J-C-94-140 (August 30, 1994)(attached as Exhibit 2 to Motion) and State of Arkansas v Habi]jtation Center. Inc .. Dallas County Circuit No. 92-100 (Feb. 14, 1995)(attached as Exhibit 3 to Motion). Joshua may argue that FOIA. requests are not \"discovery\" which may be controlled pursuant to Rule 26( c ). However, Rule 26( c) has been held to apply to all forms of discovery, \\ not just the discovery devices created by the Federal Rules of Civil Procedure. In Smith v, Union Pacific R, Co,, 878 F.Supp. 171 (D. Colo. 1995), the railroad. sought to require an employee. Smith, to attend a return-to-work physical pursuant to the railroad's medical rules. When Smith failed to attend, the railroad initiated disciplinary proceedings against Smith. Smith had been off 2 FRIDAY ELDREDGE \u0026amp; CLARK taJ 039 / 0 41 work due to an on-the-job injury and had .filed a FELA suit against the railroad. Smith moved for a protective order to prevent the railroad :from requiring rum to attend the return-to-work physical. The trial court granted the motion stating: To the extent the \"back-to-work\" physical and ensuing disciplinary proceedings bear on issues relevant to this FELA action and gene.rate .facts or medical opinions that could be used as evidence against Smith, it constitutes \"discovery\" within the meaning of Fed. R Civ. P. 26(b)(l) and is subject to this court's authority under Rule 26(c) .. . to manage and control as justice requires. See gen~ 8 Wright, Miller \u0026amp; Marcus. Eederal Practice and Procedure: Civil 2d,  2036, pp. 487-88 (1994)(the district court has complete control over the discovery process); I find justice requires entry of a protective order prolu\"biting UP from requiring Smith to attend the \"back to work\" physical at issue and from initiating disciplinary proceedings against Smith based on his failure to so attend. Id. 878 F.Supp. at 173. ~ Vicary v. Consolidated Rail Crup., 942 F.Supp. 1146, 1149 (N.D. Ohio 1996)(following Smith) and Heathscott v. Union Pacific Railroad Co., U.S.D.C. No. 5:00CV00333-WRW (Feb. 16, 200l)(following Smith and~andattached as Exhibit4to Motion). Similarly, to the extent Joshua intends to use LRSD's FOIA response in proceedings before this Court, the FOIA request constitutes discovery subject to this Court's authority under Rule 26(c). See also John Doe Agency v. John Doe Corp., 493 U.S. 146, 153, 110 S.Ct. 471, 476, 107 LEd.2d 462 (1989)(\"[A] court must be mindful of this Court's observations that the FOIA was not intended to supplement or displace rules of discovery.\"); Parton v. United States DeJ\u0026gt;'t ofJustice, 727 F.2d 774, 777 (811, Cir. 1984)(\"Due to the circumstances present in this suit, it is also well to note that it is not the purpose of the [Freedom ofJnformation] Act to benefit private litigants by serving as a supplement to the rules of civil discovery.\"); Kanter v. Internal Revenue Service, 433 F.Supp. 812, 819 (N.D. Ill. 1977)(\"Accordingly, the Court finds that the Freedom of Infunnation Act may not be utilized as a means of obt.aining the release of information which would be protected from discovery in a pending or prospective enforcement proceeding.\"). This court should exercise its discretion under Rule 26(c) to prevent Joshua from using the FOIA to conduct discovery in preparation. .f or the July 2.2 , 2002 hearing in this case. The ' .. ~ parties have already exchanged their witness and exhibit lists pursuant to the Court's scheduling 3 uo 1 ,:.0 1 .:.vu,:. .1.0 : 4 0 l\".1\\4. ;\u0026gt;U.l J'/1) ;.(.l 4 7 .1-'RIDAY ELDREDGE \u0026amp; CLARK Ill 0 4 01 0 41 order. Thus, additional documents obtained by Joshua from the LRSD will not be admissible at the July 22, 2002 hearing. The breadth of the requests suggests that Joshua's pUipose is to harass the LRSD as LRSD works to prepare for the July 22, 2002 h~aring. _ The burdensome nature of the requests is compounded by the potential criminal penalty (up to 30 days in jail) which could :flow from the LRSD's failure to respond within three days. See Ark. Code Ann. 25-19-104. Furthermo~, simple fairness requires that Joshua and LRSD be required to play by the same rules. While Joshua has 30 days to respond to LRSD's discovery submitted pursuant to Rule 26, LRSD has only three days (at best) to respond to FOIA requests. This provides an unfair advantage to Joshua unrelated to the merits of the underlying case. Joshua should not be permitted to use the FOIA to pressure LRSD by making it impossible for LRSD to go about the business of educating children. ff the integrity of the judicial process is to be maintained, the playing field must be leveled. Joshua should be required to conduct discovery pursuant to the Federal Rules of Civil Procedure. Respectfully Submitted, Christopher Heller (#81083) John C. Fendley, Jr. (#92182) LITTLEROCKSCHOOLDIBTRICT FRIDAY, ELDREDGE \u0026amp; CL.ARK Regions Center, Suite 2000 400 West Capitol Little Rock, AR. 72201-3493 (501) 376-2011 B~ 4 . FRIDAY ELDREDGE \u0026amp; CLARK CERTIFICATE OF SERVICE I certify that a copy of the foregoing has been served on the following people by fax and mail on June 28, 2002: Mr. John W. Walker JOHN W. W Al.KER, P.A. 1723 Broadway Li~e Rock, AR 72201 Mr. Sam Jones Wright, Lindsey \u0026amp; Jennings 2200 NationsBank Bldg. 200 West Capitol Little Rock, AR 72201 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, AR 72201-3472 Mr. Richard Roachell Roachell Law Firm 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor 1 Union National Plaza 124 W, Capitol. Suite 1895 Little Rock, AR 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rocle. AR 72201 s 1410 41/041 FRIDAY ELDREDGE \u0026amp; CLARK fAIDAY, ELDREDGE \u0026amp; CLARK A PARTNERSHIP OF INDIVIDUALS ANO PROFESSIONAL CO~PORATIONS ATTORNEYS AT LAW :lOOO t-111~ I t;UMM!:RCIAL BUILDING 4UU Wt:~ I \u0026lt;.,;APITOL AVENUE I.I I I Lt: HUt;K, AHKANSAS 72201-3493 I t:Lt:1-'HUNI:! 501-376-2011 FAX NO. 501-376-2147 THE FOLLOWING PAGES ARE TO: Dr. Ken James 324-2146 FROM: DIRECT NUMBER MESSAGE.: Richard Roachell 224-4409 Dennis R. Hansen 682-8084 Steve Jones 375-1027 Sam Jones 376-9442 rhris Heller 370-1506 TOTAL NO . nF PZl.r.l-!~ n.1/\"'r.rmn.m Tl.l'TC! !NFOP~AT!ON SF.BET: fl DATE: June 28. 2002 TIME: ____ ____ __ .A.M./P.M. IP YOU DO NOT RECEIVE ALL THE PAGES - PLEASE CALL BACK ASAP (501) 370-1444 Brenda ~001/041 FOR OFFICE USE ONLY: ____________ H_I~2=3~~---9~0'-------- CLIENT NUMBER MATTER NUMBER CONFI DENTI .ALIT'z NOXE: The information in this facsimile eransmittal is legally privileged and confidential in~onnation illeepded only or the use of the .individual or ent:..ity named above. Iz the rei,.der of this message .iB not the intended r ecipient, you u-a hereby notified chac any dissemination, distribucion or copy of the transmittal i3 3triccly prohibited- If you receive z:hig transmittal in errgr, please i mmdiacely notify us by t:elephone, a.nd return the original transmittal to us \u0026amp;t t:he above address via the United States Postal Service _ Thank you.    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["judicial records"],"dcterms_extent":["91 page scan, typed","50 page scan, typed"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\u003c?xml version=\"1.0\" encoding=\"utf-8\"?\u003e\n\u003citems type=\"array\"\u003e\u003citem\u003e   \n\n   \n\n   \n\n\n   \n\n   \n\n\n   \n\n\n   \n\n   \n\n\n   \n\n   \n\n\n   \n\n   \n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n   \n\n \n\n \n\n \n\n\n   \n\n   \n\n   \n\n\n   \n\n  \n\n   \n\n\n   \n\n  \n\n   \n\n\n   \n\n \n\n\u003cdcterms_description type=\"array\"\u003e   \n\n\u003cdcterms_description\u003eDistrict Court, five orders; District Court, motion for substitution of counsel; District Court, order; District Court, the Joshua intervenors' opposition to the Little Rock School District's (LRSD's) motion for an immediate declaration of unitary status; District Court, notice of filing, Office of Desegregation Management report, ''Disciplinary Sanctions in the Pulaski County Special School District (PCSSD)''; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool    This transcript was create using Optical Character Recognition (OCR) and may contain some errors.    IN THE UNITED STATES DISTRICT COURT u.foilfm~cPuRT -\"'EASTERN DISTRICT ARKANSAS EASTERN DISTRICT OF ARKANSAS WESTERN DMSION MAY 0 7 2002 LITTLE ROCK SCHOOL DISTRICT, Plaintiff;-- vs. * * * * PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. 1, et al., Defendants, MRS. LORENE JOSHUA, et al., Intervenors, KATHERINE KNIGHT, et al., Intervenors. * * * * * * * * ORDER ~~M~~ No. 4:82CV00866 WRW RECEIVED MAY -8 2002 OFFICE OF DESEGREGATION MONITORING The Joshua lntervenors have moved for a second extension of time in which to respond to Little Rock School District's (\"LRSD\") Motion for an Immediate Declaration ofUnitary Status. For cause, Joshua Intervenors state that they are in settlement talks with LRSD on the issue ofLRSD's unitary status, and that \"additional time is needed to continue these discussions.\" Although Joshua's counsel has asked to extend the response time until May 20, 2002, I take judicial notice of the fact that he is a candidate for the Arkansas Senate; and the primary election is on Tuesday, May 21 , 2002. Accordingly, I am granting Joshua Intervenors an extension until and including May 30, 2002. I do note that the chances of another extension are remote, at best. DATED this ( tff day of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE w~/iULE ss ANotoR~7F9R CP ON ~(}y BY ~ ~ 1 7 595 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION FILED U.S. DISTRICT COURT EASTERN D1STRICT ARKANSAS LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. PULASKI COUNTY SPECIAL SCHOOL * DISTRICT NO. l , et al., * Defendants, * MRS. LOREN JOSHUA, et al., lntervenors, KATHERINE KNIGHT, et al. , lntervenors, 4:82cv00866 RECEIVED MAY - 8 2002 OFACEOF DESEGREGATION MONITORJNG ORDER The parties are notified that Judge J. Thomas Ray is the U. S. Magistrate Judge assigned to this case. Dated this 6th day of May, 2002 . . /11:L ' ------ JY ry{, ~ . THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITH RULE 58 AND/OR ~CP ON -0.-1 f?\"\"r: BY , c.,,,,,. UNITED STATES DISTRICT JUDGE 596 A072A IN THE UNITED STATES DISTRJCT CO_B~J~Jk1 ~1?ouRT EASTERN DISTRICT OF ARKAN~ER~l DISTRICT ARKANSAS LITTLE ROCK DIVISION MAY 9 2082 LITTLE ROCKS,CHOOL DISTRICT JAMES VY. IVIT\\L~n 1V1ALK., CLE.RK. B . \\J y .:OT A ~ --- y. - - Ut:t''.Ct:tKK V. No. 4-:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRJCT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERJNE KNIGHT, ET AL. RECEIVED MAY 1 3 2002 OFACEOF DESEGREGATION MONITORING ORDER DEFENDANTS INTER VEN ORS INTER VEN ORS On January 3, 2002, I was assigned this twenty-year-old action, which over the years has come to be known in this District simply as \"the school case\" (docket entry #3570). Pleadings in the case now occupy hundreds of feet of files in the District Court Clerk's office, and the magnitude of the appeals in the case has led the Eighth Circuit to adopt a policy of rotating the case to a new appeal panel every five years. Thus, by necessity, the decisions I make will be built on the footings and foundations poured by other District Court and Appellate Court Judges--their decisions have shaped the current contours of the case. On March 15, 2001, approximately nine months before I inherited this case, the Little Rock School District (\"LRSD\") filed a pleading which could result in a watershed ruling--a Request for Scheduling Order and attached Compliance Report ( docket entry #3410) aimed at obtaining \"an order finding LRSD unitary with regard to all aspects of school operations.\" Id. Subsequently, the Joshua Intervenors (\"Joshua\") filed an Opposition to the LRSD's Compliance Report (docket entry #3447) in which they challenge the LRSD's contention that it is entitled to A072A a judicial declaration that it has achieved overall unitary status. On January 25, 2002, I entered an Order (docket entry#357 l) referring the issue of unitary status to a mediator. In doing so, it was my understanding that the LRSD and Joshua both had requested mediation as a means of promptly, efficiently, and finally resolving that issue. Over ninety days have now elapsed, with no report that progress has been made through mediation. I was somewhat sanguine, but the lapse of time with no report of progress has dampened my optimism. 1 On March 15, 2002, one year to the day after filing its Compliance Report, the LRSD filed a Motion for an lrnmediate Declaration of Unitary Status ( docket entry #3580) and supporting Memorandum Brief (docket entry #3581). On May 6, 2002, I entered an Order (docket entry #3595) granting Joshua's request for an extension of time and allowing them until and including May 30, 2002, to file their Response. The recent actions of the parties, in placing the issue of unitary status back before me, appears to be a clear signal that mediation is not succeeding and that settlement negotiations have stalled. Therefore, the Court intends to decide, soon, the issue of unitary status raised in the LRSD's March 15 Motion. Inheriting the case at this point (I hope its shadow is falling far to the east) has required me to review an enormous amount of material just to try to determine where we are.2 Although 1On April 18, 2002, Joshua filed a Motion for Extension of Time (docket entry #3592) that alludes to the parties having engaged in \"settlement discussions regarding LRSD's Motion for Unitary Status.\" I have heard nothing further from the parties regarding these settlement discussions. It is most unlikely that any future requests for extensions will be granted because of \"settlement discussions.\" 2The fields of education and \"school litigation\" also have a jargon of their own which a neophyte must attempt to absorb. -2- A072A IRP.vR/~ it may be old hat to the parties, I believe it will be helpful for me to set out in some detail where I find we are and, just as importantly, where I intend to go. I. Where I Find We Are On January 21, 1998, the LRSD and Joshua filed a Joint Motion for Approval of the LRSD's January 16, 1998 Revised Desegregation and Education Plan (the \"Revised Plan\"). On April 10, 1998, the Court entered an Order ( docket entry #3144) approving the Revised Plan. Section 11 of the Revised Plan specifically describes the procedure the LRSD must follow to achieve unitary status: SECTION 11: Unitary Status At the conclusion of the 2000-0 I school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 , indicating the state of LRSD's compliance with the Revised Plan. Any party challenging LRSD's compliance bears the burden of proof. If no party challenges LRSD 's compliance, the above-described order shall be entered without further proceedings. On March 15, 200 l , the LRSD filed the required \"Compliance Report\" ( docket entry #3410),3 which describes section by section the LRSD's alleged \"substantial compliance'\"' with each provision of the Revised Plan. The Court entered an Order (docket entry #3414) establishing May 18, 2001, as the 3 Although not required by the Revised Plan, on March 15, 2000, the LRSD filed an Interim Compliance Report (docket entry #3356). 4 The Revised Plan does not define what \"substantial compliance\" means, but, as Professor McCormick teaches us, it takes \"a skillful definer to make it plainer by multiplication of words   the explanations themselves often need more explanation than the term explained . .. . \" 2 J. Strong, McCormick on Evidence, 341, p. 430 (5th ed. 1999). -3- A07?A --- deadline for challenges to the LRSD's Compliance Report. Subsequently, Joshua moved three times for extensions of that deadline ( docket entries #3415, #3429, and #3443). Finally, the Court entered an Order (docket entry#3445) establishing June 25, 2001, as the final deadline for Joshua to file their Response to the LRSD's Compliance Report.5 On June 25, 2001, Joshua filed an Opposition to the LRSD 's Compliance Report ( docket entry #3447). In this Opposition, Joshua argues that the LRSD has failed to substantially comply with various specifically enumerated sections of the Compliance Report and describes the nature of the LRSD's noncompliance under each of those sections. Importantly, Section 11 of the Revised Plan explicitly provides that the \"challenging party'' has the burden of proving that the LRSD has failed to substantially comply with its obligations under the Revised Plan. Counsel for Joshua has acknowledged on the record that the Court has \"given us and by agreement we accept the burden of proof' ( docket entry #3464, transcript of July 9, 2001 scheduling conference, p. 26, lines 14-17).6 Almost immediately after Joshua filed their Opposition to the LRSD's Compliance Report, the Court began a series of telephone conferences with counsel (docket entries #3348 and #3349) to establish a schedule for conducting evidentiary hearings on Joshua's challenges to the Compliance Report. During the June 29, 2001 telephone conference, the Court set aside July 5 5During a telephone conference on June 29, 2001, the Court described in some detail the circumstances surrounding the three extensions of this filing deadline ( docket entry #3461, transcript of June 29, 2001 telephone conference, pp. 24-25). 61ndependent of this judicial admission, the Court specifically ruled that, under the plain language of Section 11 of the Revised Plan, it was agreed that any party, such as Joshua, who challenges the LRSD' s compliance will bear the burden of proof ( docket entry #3461, transcript of June 29, 2001 telephone conference, p. 26, lines 11 -21). -4- A072A (Rev.8/82) and 6 and August 1 and 2 to hear evidence from Joshua regarding its challenges to the LRSD's \"substantial compliance\" with the Revised Plan ( docket entry #3461 at p. 25, lines 22-25, and p. 26, lines 1-9). The Court also made it clear that counsel for Joshua should present his strongest arguments and evidence first, followed by subsidiary arguments and evidence ( docket entry #3461, pp. 54-55). Because Joshua has the burden of proof, the Court allowed them to put on their case first. On July 5 and 6, 2001 , Joshua called as witnesses Junious Babbs, the Associate Superintendent for Administrative Services (docket entry #3462, transcript of July 5, 2001 evidentiary hearing and docket entry #3463, transcript ofJuly 6, 2001 evidentiaryhearing at pp. 274-340) and Dr. Les Carnine, the former Superintendent of the LRSD (docket entry #3463, transcript of July 6, 2001 evidentiary hearing). During his cross-examination7 of these two witnesses, counsel for Joshua sought to elicit testimony proving that the LRSD had failed to substantially comply with three specific obligations under the Revised Plan: (1) \"Good faith\" implementation of the policies, programs, and procedures described in the Revised Plan (sections 2.1 and 2.1. l ); (2) implementation of programs, policies, and procedures designed to improve and remediate the academic achievement of African-American students (sections 2.7, 3.4, 5.1, 5.2, 5.2.l(a)-(l), 5.2.2(a)-(h), 5.2.3(a)-(f), 5.3-5.3.5, 5.4, 5.6.1, and 2.7.1); and (3) implementation of programs, policies, and procedures regarding various aspects of student discipline (sections 2.5 and 2.5.1- 2.5.4). After taking the first two days of testimony, the Court conducted a hearing on July 9, 7This technically was \"direct examination,\" but since the witnesses were associated with an adverse party, it was, in effect, cross-examination. -5- AO 72A 200 I, to schedule the remaining days necessary to complete the evidentiary hearing on Joshua's opposition to the LRSD's Compliance Report (docket entry #3464, transcript of scheduling conference held on July 9, 2001). Counsel for Joshua, in response to questions from the Court, stated that he believed the LRSD 's three most serious areas of non-compliance under the Revised Plan were failing to remediate the academic achievement of African-American students; continuing a policy of disparate treatment of African-American students in disciplinary actions; and failing, in good faith, to properly implement the Revised Plan ( docket entry #3464 at pp. 26- 29). With the agreement of counsel, the Court set aside August 1 and 2 and November 19 and 20 to complete the evidentiary record on these three discrete issues ( docket entry #3464 at pp. 45- 46, 51-52, and 60-61 ). In formulating this schedule, the Court indicated that it would hear six hours of testimony on August 1, November 19, and November 20, and three hours of testimony on August 2. The Court ruled that these twenty-one hours of anticipated testimony would be divided equally between Joshua and the LRSD, so that each side would be allowed ten and onehalf hours to put on their respective cases on the issues of good faith, student achievement, and student discipline (docket entry #3464 at pp. 62-64). Finally, at the close of the July 9 scheduling conference, the Court engaged in the following colloquy with counsel, that makes it clear everyone knew and understood the three issues that would be tried to conclusion during the hearings on August 1-2 and November 19-20: MR. HELLER: But I just want to be sure we have heard Mr. Walker's case before we present ours. THE COURT: Yes, that's correct. That's correct. In other words, and these will be discrete issues, and I say they are discrete. Discipline and achievement, and I agree that there is some linkage there between the two. But those things, achievement particularly, is what is bothering me. -6- A072A (Acn,A / R'J\\ And discipline, maybe Mr. Walker can make me think that discipline ought to be bothering me too, and I guess it is to an extent because of the way the District has presented it. But still, there is some improvement there. MR.WALKER: Here is the other thing. Throughout this whole thing, the concept of good faith is present, and I don't th.ink we are going to have separate sections where we present good faith evidence. Part of what would be presented, as we are presented with Dr. Carnine and Mr. Babbs, is evidence to show that they had no intention of doing what they said they were going to do, and they really did not do it. So, that will be addressing good faith. THE COURT: Well, of course, you are free to do that. I have personally observed that Little Rock, I think, has been much, much better in recent years than it was when I first got the case .... (Docket entry #3464, p. 65, lines 16-25, and p. 66, lines 1-23.) In the August 1, 2001 evidentiary hearing, counsel for Joshua called and examined Dr. Sadie Mitchell, Associate Superintendent of the LRSD, and Dr. Bonnie Lesley, the Associate Superintendent for Instruction ( docket entry #3493). At the beginning of the August 2 evidentiary hearing, counsel for Joshua re-examined Dr. Mitchell, and called and examined Dr. Linda Watson, the Assistant Superintendent responsible for handling discipline in alternative education settings, and James Washington, the ombudsperson for the LRSD ( docket entry #3494). During his examination of these four witnesses, counsel for Joshua again sought to elicit testimony regarding the LRSD's failure to substantially comply with its obligations related to good faith implementation of the Revised Plan; to improve the academic achievement of African-American students; and to eliminate the disparate treatment of African-American students in disciplinary actions. At the conclusion of the August 2 hearing, the Court noted that counsel for Joshua had -7- AO 72A used eight of his allotted ten and one-half hours ohime. The Court made it clear that counsel for Joshua could elect to rest his case and use the remaining two and one-half hours to cross-examine witnesses called by the LRSD or he could forego cross-examination and continue to call witnesses. Joshua's counsel indicated that, after he called a few \"brief' witnesses at the beginning of the November 19 hearing, he intended to rest his case and reserve his remaining time for cross-examination (docket entry #3494, pp. 950-954). At the beginning of the November 19 evidentiary hearing, the Court noted that counsel for Joshua had decided to rest his case on the issues of the LRSD's good faith compliance with implementation of the Revised Plan, the implementation of programs and policies designed to improve and remediate the academic achievement of African-American students, and student discipline (docket entry #3558 at pp. 14-15). After the Court denied its Motion for Directed Verdict on those issues, the LRSD proceeded to call three witnesses: James Washington, Dr. Linda Watson, and Dr. Bonnie Lesley. Counsel for the LRSD and Joshua completed their respective direct and crossexaminations of Mr. Washington and Dr. Watson on November 19. However, counsel for the LRSD was not able to complete his direct examination of Dr. Lesley (docket entry #3558). On November 20, counsel for the LRSD and Joshua completed their direct and crossexaminations of Dr. Lesley. After counsel for Joshua concluded his cross-examination of Dr. Lesley, he sought to call several \"rebuttal witnesses\" in what he estimated to be his remaining \"25 or so minutes\" of the original ten and one-half hours of time (docket entry #3559, p. 573). Counsel for the LRSD objected and suggested that \"the time left for Mr. Walker is just about zero\" (docket entry #3559, p. 573). -8- A072A The Court resolved this dispute by making the following unequivocal ruling: THE COURT: But I will tell you what I will do, I will give you [Mr. Walker] twenty-five more minutes. Now that's it. (Docket entry #3559 at p. 575, lines 21-23; emphasis added.) Although counsel for Joshua urged the Court to \"keep an open mind on aJ~owing Joshua more time,\" the Court refused to reconsider its ruling. The Court also made it clear that, if counsel for Joshua intended to call members of the Office of Desegregation Monitoring (\"ODM\") as rebuttal witnesses, their testimony would count against his remaining twenty-five minutes of time (docket entry #3559 at p. 583, lines 9- 12). Thus, at the conclusion of the November20 evidentiary hearing, six days of testimony and hundreds of exhibits had been introduced in connection with what Joshua identified as their three strongest arguments against declaring the LRSD unitary: ( 1) the LRSD had failed to substantially comply with the \"good faith\" obligations contained in the Revised Plan; (2) the LRSD had failed to substantially comply with the obligations in the Revised Plan to implement programs, policies, and procedures designed to improve and remediate the academic achievement of AfricanAmerican students; and (3) the LRSD had failed to substantially comply with the obligations in the Revised Plan to implement programs, policies, and procedures designed to ensure that there is no racial discrimination with respect to student discipline. Furthermore, counsel for Joshua and the LRSD had both rested their cases on these three issues, and all that remained was for Joshua's counsel to use his remaining \"twenty-five minutes\" to call rebuttal witnesses.8 On December 11, 2001, the Court conducted a scheduling hearing to discuss issues and 8Counsel for Joshua indicated that these rebuttal witnesses might include the staff of ODM, Dr. Ross, and Dr. Roberts. -9- AO 7'?A witnesses that would be presented during a five-day evidentiary hearing scheduled to begin the week of January 28 (docket entry #3597). At the beginning of the hearing, the Court noted that Joshua had twenty-five minutes of\"true rebuttal\" testimony that remained to be heard on the three discrete issues which had been tried to conclusion during the six previous days of hearings (docket entry #3597 at p. 5). The Court requested that counsel for Joshua identify the issues and witnesses he intended to cover during the upcoming five-day evidentiary hearing. Counsel for Joshua identified the following areas of the Revised Plan which he intended to attack to prove the LRSD was not in substantial compliance: ( 1) extracurricular activities; (2) advanced placement courses; (3) guidance and counseling; (4) the student assignment plan; (5) no middle school evaluation; (6) the Cook School closing; (7) housing desegregation; (8) interdistrict schools and monitoring student recruitment; (9) staffing and funding incentive schools; (10) alternative education; (11) compliance standards; ( 12) desegregation plan modification; and ( 13) the academic achievement gap ( docket entry #3597 at pp. 6-19). Counsel for Joshua estimated it would take three full weeks to put on his case regarding these issues ( docket entry #3597 at p. 19). LRSD's counsel strenuously objected to Joshua expanding their attack on the LRSD's substantial compliance to include essentially every section of the Revised Plan. First, counsel noted that: (a) section 8.2 of the Revised Plan sets forth a detailed procedure for raising compliance issues; and (b) Joshua had failed to utilize that procedure to raise any of the foregoing compliance issues before filing their June 25, 2001 Opposition to the LRSD's March 15, 2001 Compliance Report. Similarly, counsel noted that Joshua had never raised any objection to the LRSD's Interim Compliance Report filed on March 15, 2000 (docket entry #3597 at pp. 21-23). -10- AO 72A /Rev.8/82\\ Second, counsel noted that Joshua was now raising challenges to the LRSD's substantial compliance with sections 3.1, 3.8, 3.9, 4.0, 6.0, 7.0, and 8.3--provisions of the Revised Plan that were not challenged in Joshua's June 25, 2001 Opposition to the LRSD's Compliance Report (docket entry #3597 at p. 23). Finally, counsel stated his much different understanding of the purpose for the December 11 scheduling hearing: I thought the purpose of what we were going to do today was to narrow the issues; get this down to some very specific issues, talk about what specific evidence was going to be needed to litigate those issues, and then set some very limited time frames to get the case on a track where the Court and the parties can fulfill their responsibility to resolve these issues as quickly as possible. (Docket entry #3597 at p. 24). In resolving this contentious dispute between counsel regarding the scope of the issues that remained on the question of unitary status, the Court first noted that counsel for Joshua had already presented his strongest evidence on student achievement and student discipline, the \"areas of [the LRSD's] compliance [with the Revised Plan] that he [counsel for Joshua] thought were weakest.\" Next, the Court identified four remaining issues related to unitary status that Joshua would be allowed to cover during the hearing scheduled to begin the week of January 28: (1) advanced placement courses; (2) guidance counseling; (3) extracurricular activities; and ( 4) the LRSD's overall obligation of good faith under the Revised Plan (docket entry #3598 at pp. 31- 32).9 The Court went on to explicitly describe how it intended to conduct the final five days of 9The Court concluded that advanced placement courses, guidance counseling, and extracurricular activities were issues closely related to the issue of improving the academic achievement of African-American students. Therefore, the Court indicated that Joshua would be allowed to present evidence on student achievement but only for the limited purpose of explaining how the LRSD's policies, programs, and procedures regarding advanced placement courses, -11- AO 72A ,n .... . . n ,n,..,\\ evidentiary hearings: THE COURT: But this is what I would like to do. Instead of giving you three weeks, I would like to, which I don't have, by the way, what I would like to do is give careful attention to achievement, guidance and counseling, and related matters such as advanced placement and extracurricular the week ofJanuary 28th . Again, I think good faith is always an issue and you can always bring that up. But I would like to confine vour focus to those matters and then, I would like to make a ruling, I would like to have everything on those matters submitted to the Court, so that I can make a ruling with respect to them. And if necessary, give the Eighth Circuit an opportunity to give us further guidance. MR. WALKER: That's fine, Your Honor. THE COURT: I would just prefer that. And I think that that would be something the District would like. It might bring this matter to closure more quickly, one way or the other. (Docket entry #3597 at pp. 36-37; emphasis added). II. Where We Go From Here Judge Wright, my immediate predecessor in this case, has done an outstanding job of narrowing the issues and establishing a schedule that should allow me to conduct no more than five additional days of evidentiary hearings on the four remaining issues and then be in a position to decide the LRSD 's Motion for an Immediate Declaration of Unitary Status. 1 For that reason, the Court intends to pick up where Judge Wright left off, without disturbing the schedule that was established and agreed to by the parties and the Court during the December 11, 2001 hearing. This means I must now address only two issues still hanging fire. guidance counseling, and extracurricular activities had adversely affected the academic achievement of African-American students. 'From my review of the transcripts, I hardly see why it should take five days for the additional evidence (two days would seem to be time aplenty), but Judge Wright has dealt with this case for a long time, and I will defer to her call. -12- A072A /Oou 0 / Ct ? \\ First, at the conclusion of the November 20, 2001 hearing, Judge Wright allowed Joshua twenty-five minutes to put on \"true rebuttal\" testimony relevant to three discrete issues: ( 1) the LRSD's good faith implementation of the Revised Plan; (2) the LRSD's implementation of policies, programs, and procedures designed to improve and remediate the academic achievement of African-American students; and (3) the LRSD's implementation of policies, programs, and procedures designed to insure that there is no racial discrimination with regard to student discipline. Having never been one to place too fine a point on time-keeping, I will allow Joshua thirty full minutes to present \"true rebuttal\" testimony directed at these three precise issues. After this brief rebuttal testimony has been received, the record will be closed on the issue of the LRSD's substantial compliance with those sections of the Revised Plan related to the academic achievement of African-American students (sections 2.7, 2.7.1, 3.4, 5.1 , 5.2, 5.2. 1, 5.2.l(a)-(l), 5.2.2, 5.2.2(a)-(h), 5.2.3, 5.2.3(a)-(f), 5.3, 5.3.1-5 .3.5, 5.4, and 5.6.1) and student discipline (sections 2.5, 2.5 .1-2.5.4). As early as practical in June, I intend to schedule a short evidentiary hearing to allow counsel for Joshua to present this \"true rebuttal\" testimony. I would also welcome a stipulation or other arrangement that would allow this extremely brief and limited rebuttal evidence to go into the record, without the need for a formal hearing. Second, I need to establish the basic ground rules for the final evidentiary hearing on the issue of whether the LRSD has achieved unitary status. Before beginning the six days of evidentiary hearings last year on Joshua's opposition to the LRSD's request for unitary status, Joshua's counsel agreed to arrange his evidence so that he presented his strongest arguments against unitary status first. Thus, I must conclude that the record now contains all of Joshua's strongest evidence ofLRSD's failure to substantially comply with its good faith obligations under -13- I I AO 72A /Rev.A/A?\\ the Revised Plan (sections 2.1 and 2.1.1). Nevertheless, consistent with Judge Wright's ruling during the December 11,2001 hearing, the Court will allow Joshua to present additional evidence of the LRSD 's failure to substantially comply with its good faith obligations but only to the extent that: (a) it relates directlv to the issues of advanced placement courses, guidance counseling, extracurricular activities, and student achievement; and (b) it does not duplicate testimony already presented by Joshua on the issue of good faith. Similarly, in putting on evidence regarding the LRSD's failure to substantially comply with its obligations under the Revised Plan related to advanced placement courses, guidance counseling, and extracurricular activities, counsel for Joshua may present evidence regarding how those issues adversely affected the academic achievement of African-American students. However, the Court will not allow counsel for Joshua to introduce any new or cumulative evidence on the issue of academic achievement, a subject that has already been thoroughly and extensively covered by Joshua's presentation of their strongest evidence during last year's six days of evidentiary hearings. The Court will enter a Scheduling Order within ten days setting aside up to five days (probably in June and/or July) to conclude the evidentiary record on the remaining factual issues relevant to the question of whether the LRSD is entitled to a declaration ofunitary status. Prior to entering that Order, the Court will conduct a telephone conference with counsel for all parties to set the dates during which this evidentiary hearing will take place. \u0026lt;)Tn DATED this~ day of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE ,_, _\"TH RULE 58 ANO/OR~ fR_;: () ~o/10/0 a-~ Gj1 ~ UNITEb ST ATES DISTRICT JUDGE -14- IN THE UNITED STA TES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. 4:82CV00866-WRW PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al RECEIVED MRS. LORENE JOSHUA, et al MAY 2 0 2002 KA THERINE KNIGHT, et al OFACE OF DESEGREGATION MONITORING ORDER u.frJJR1~PuRT EASTERN DISTRICT ARKANSAS PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS This is to confirm a telephone conference will be held today, Tuesday, May 14, 2002, at 2:30 p.m. Counsel are to carefully review the Court's Order of May 9, 2002 before the telephone conference. IT IS SO ORDERED this 14th day of May, 2002. .u J d,. ln\\n  ,-~:1~,-f-.( UNITED STA TES DISTRICT JUDGE ord.LRSD 599 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT, Plaintiff, vs. * * * * PULASKI COUNTY SPECIAL SCHOOL '' DISTRICT NO. 1, et al., * Defendants, * MRS. LOREN JOSHUA, et al., lntervenors, KATHERINE KNIGHT, et al., lntervenors, * * * * 4:82CV00866 ORDER FILED U S DISTRICT COURT c- 1\\STER!~\\ CJiST9'CT ADV ~r--1c; Ac; ,M~Y 1 5 2002 RECEIVED MAY 1 7 2002 Off\\CE Of DESEGREG~l\\Ott MOttllORlltG Yesterday, on May 14, 2002, an on-the-record telephone conference was held with the lawyers for all the parties. During the telephone conference the following schedule was adopted: l. A final evidentiary hearing on the Little Rock School District's Motion for an Immediate Declaration of Unitary Status was set to commence on Monday, July 22, 2002 at 8:30 a.m.; and to conclude on Friday, July 26 at 5:30 p.m . The time will be divided as follows: a. At 8:30 a.m. on Monday, July 22 the Joshua intervenors will be given 30 minutes within which to present rebuttal evidence pertaining to the three issues tried virtually to conclusion during previous hearings before Judge Wright; b. -2- The remaining forty hours of trial time will be divided equally (twenty hours and twenty hours) between the Joshua intervenors and the Little Rock School District. The Joshua intervenors must notify the Court, on or before July 9, 2002 of the amount of time, out of their twenty hours, that they wish to reserve to present rebuttal evidence. 2. I expect to take testimony from 8:30 a.m. until 6:00 p.m. on Monday, July 22 (with an hour for lunch); and from 8:30 to 5:30 p.m. on each of the following four days (with an hour for lunch each day). 3. On or before June 21, 2002 the parties are directed to identify the name of each of their witnesses, the date and time each witness will be called, and the anticipated time it will take for direct examination of each witness. A detailed statement must be included, of each witness 's anticipated testimony on each issue the witness will address. 4. In addition to exchanging exhibit lists, each party must exchange pre-marked exhibits on or before June 21, 2002. Any exhibit that is not pre - marked and exchanged on or before June 21, 2002 will not be received into evidence during the July 22 hearing, absent highly unusual circumstances . S. U. S. Magistrate Judge J. Thomas Ray will conduct a hearing commencing at 8:30 a.m. on July 9, 2002. At that hearing, all exhibits will be presented, and pre-marked references will be two-blocked ; the witness lists and accompanying witness statements mentioned above will be submitted ; and evidentiary objections and motions in Ii mine will be submitted (it is likely that -3- 1 will later rule on most of the evidentiary objections and motions in limine, - although Judge Ray may issue some rulings during his hearing). 4. By 5 :00 p.m. on Monday, August 19, 2002 the parties must file their proposed findings of fact and conclusions of law with respect to the Little Rock School Districts Motion for a Declaration of Unitary Status. 5. It is re-emphasized that the parties will be required to present evidence within the limits set in my order of Thursday, May 9. 6. Counsel are instructed to interview and prepare witnesses for rifle - shot presentations. IT IS SO ORDERED. Dated this 12.~ay of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WITI-J?.llj-E 58 AND/~~)~ FRCP ON 1/J\"-/-Dr'sy_.~~--- RECEIVED MAY 2 2 2002 OFFICE OF DESEGREGATION MONITORING STATE OF ARKANSAS OFFICE OF THE ATTORNEY GENERAL Mark Pryor Attorney General M. SamuelJones,ill Wright, Lindsey \u0026amp; Jennings 2000 NationsBank Bldg. 200 W. Capitol Little Rock, AR 72201 John W. Walker John Walker, P.A. 1 723 Broadway Little Rock, AR 72201 May 21, 2002 Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon \u0026amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Marshall Dennis Hansen Assistant Attorney General Direct dial: (501) 682-3643 E-mail: DennisH@ag.state.ar.us Richard Roachell P.O. Box 17388 Little Rock, AR 72222-7388 Office of Desegregation Monitoring 1 Union National Plaza 124 W. Capitol, suite 1895 Little Rock, AR 72201 Re: Little Rock School District v. Pulaski County Special School District, et al. USDC No. LR-C-82-866 Dear Counsel: Enclosed please find a copy a Motion for Substitution of Counsel in the above-styled case, which I am filing with the Court today. Very truly yours, 323 Center Street  Suite 200  Little Rock, Arkansas 72201 (501) 682-2007  FAX (501) 682-2591 Internet Website http://www.ag.state.ar.us/ Page 2 Cover Letter May 21, 2002 DRH/dpn Enclosure cc: Ray Simon Scott Smith Q:\\Civil\\MarkH\\Open Files\\deseg\\2002\\ c orrespondence ~ ~ Ll~~~iJ  R Hansen DAessnimstsa nt A ttome y General \\ltr cover 5-2 I -02drh.doc IN THE UNITED ST A TES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. No. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, et al. MOTION FOR SUBSTITUTION OF COUNSEL RECEIVED MAY 2 2 2002 OFFICE OF lltS6RE6AT!ON MOillTORING PLAINTIFF DEFENDANTS Comes now the Arkansas Department of Education (ADE), to state for its Motion for Substitution of Counsel the following: 1. Mark A. Hagemeier recently resigned from his position with the Office of the Attorney General. 2. Dennis R. Hansen, Deputy Attorney General will be representing the defendant, ADE in this matter. 3. All correspondence and filings should be forwarded to the attention of Dennis R. Hansen, Deputy Attorney General, 323 Center Street, Suite 200, Little Rock AR, 72201. Wherefore, the defense respectfully requests that Dennis R. Hansen be substituted as the attorney ofrecord for defendant ADE Respectfully submitted, MARK PRYOR, Attorney General By ~ L(-i44t. Dennis R. Hansen #97225 Deputy Attorney General 200 Catlett-Prien Tower 323 Center Street Little Rock, Arkansas 72201 (501) 682-1315 Attorneys for Defendant CERTIFICATE OF SERVICE I, Dennis R. Hansen, do hereby certify that I have served the foreg~ument by mailing a copy of same by US. Mail, postage prepaid, thisj}s+ day of , 2002, to the following: M. Samuel Jones, III Wright, Lindsey \u0026amp; Jennings 2000 NationsBank Bldg. 200 W. Capitol Little Rock, AR 72201 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell P.O. Box 17388 Little Rock, AR 72222-7388 Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon \u0026amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 Dennis R. Hansen AO 72A (Rev.8/82) FILED U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT coUiPf\"i D!Srn:c--T \\CH' '~IC: l'I C: FOR THE EASTERN DISTRICT OF ARKANSAS M1\\Y 2 8 2002 WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. l, ET AL. ORDER JAMES W. 8y: _________ _ DEP.CLERK PLAINTIFF DEFENDANTS Pending before the Court is Separate Defendant Arkansas Department of Education's Motion for Substitution of Counsel (docket entry #3602). In that Motion, Separate Defendant Arkansas Department of Education asks that Assistant Attorney General Dennis R. Hansen be substituted for Mark A. Hagemeier as its counsel of record in this matter because Mr. Hagemeier no longer works for the Attorney General 's Office. The Court finds good cause for granting the Motion. IT IS THEREFORE ORDERED THAT Separate Defendant Arkansas Department of Education's Motion for Substitution of Counsel (docket entry #3602) is hereby GRANTED. Accordingly, the Clerk is hereby directed to substituted Assistant Attorney General Dennis R. Hansen as the attorney of record for Separate Defendant Arkansas Department of Education. Dated this~ day of May, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE .. :, c-1 ,~d e.!.: 53 t/:l.:,/OP~7~(~)i,:RCP 5'/17/01/ -- ---~ ---- UNITED STATES DISTRICT JUDGE 6 0 IN THE UNITED STATES DISTRICT COURT f\u0026lt;,'.':' ? t 11- ? EASTERN DISTRICT OF ARKANS1~  t.LL,. WESTERN DIVISION By:MES W. McCORMACI(, CLER/( LITTLE ROCK SCHOOL DISTRICT v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. LR-C-82-866 RECEIVED MAY 3 O 2002 OFFICE OF DESEGREGATION MONITORING DE;-:, CLERK PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS The Joshua Intervenors' Opposition to the LRSD's Motion for an Immediate Declaration of Unitary Status This memorandum responds to the LRSD's \"Motion for an Immediate Declaration of Unitary Status,\" filed on March 15, 2001. Introduction During the 1997-98 school year, representatives of the Joshua Intervenors and the LRSD completed the proposed \" [ LRSD] Revised Desegregation and Education Plan.\" They then filed a joint motion seeking its approval by the court on January 21, 1998. On April 10, 1998, the court (Judge Susan Webber Wright) approved the revised plan. The plan provided for a three-year term assuming substantial and good faith compliance with its terms. [Sections 2.1, 9, and 11] 1 The plan further provided for \"[t]he 1997-98 school year and the first semester of the 1998-99 school year [to] 1 .E....,__g_,_, Sturgis v. Skosos, 977 S.W.2d 217, 223 (Ark. 1998) (interpret contract not by emphasizing one clause to the exclusion of others, \"but from the entire context of the agreement\"). 1 be a transition period in preparation for implementation of [the] Revised plan.\" [Section 10] Section 11 of the revised plan provides, in part: \"In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with the Revised Plan\" (emphasis added). 2 The LRSD submitted an Interim Compliance Report on March 15, 2000 (cited as March 2000 report at--) and a Compliance Report on March 15, 2001 (cited as March 2001 report at--). On June 25, 2001, the Joshua Intervenors filed an \"[O]pposition to [the] Little Rock School District's Compliance Report.\" The court (Judge Wright) conducted 5 1-2 days of hearings concerning the LRSD's effort to secure release from court supervision [i.e., on July 5-6, 2001, August 1-2, 2001, and November 19-20, 2001). Thereafter, on March 15, 2002, the LRSD filed its motion for an immediate declaration of unitary status. This memorandum responds to the LRSD motion, with regard to the subjects addressed in the hearings conducted by Judge Wright: Revised Plan Sections 2 .1 ( general requirement of good faith compliance); achievement) ; 2.5-2.5.4 ( student discipline); 2.7.1 (program evaluation) ; 3 2.7 2.12.2 (academic (general 2 See Tr., 8-2-01, at 890, 3-9 (comment by Judge Wright on the limited information on student discipline set forth in the March 2001 report). 3 While Section 2.7.1 refers to program assessment, the terms assessment and evaluation are, at times, used interchangeably. [Tr., 11-19-01, at 242, 13-17 (Associate Superintendent Bonnie Lesley)] This memorandum shows, in detail, that LRSD acted on the premise that Section 2.7.1 addressed program evaluation, until, in 2 requirement of activities \"for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate .. ); 6.0 to 6.7 (generally applicable LRSD Compliance program). This memorandum also addresses the obligation of the LRSD to narrow the racial achievement gap, as required by the \"Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989.\" See revised plan, Section l(a. ); Tr., 7-6-01, at 378, 21-24 (recognition of obligation by former Superintendent Les Carnine); Tr., 11-20-01, at 564, 1-4 (recognition of obligation by Associate Superintendent Leslie). It is necessary to consider in connection with the LRSD motion and this response that the Joshua Intervenors' have the opportunity to submit some additional evidence. See Order by Judge William R. Wilson, May 9, 2002 at 13 (30 minutes of rebuttal), at 14 (during additional hearings, Joshua Intervenors may offer certain evidence bearing upon \"good faith obligations\" and \"the academic achievement of African-American students\"). Subsequent to the filing of the LRSD motion, this court scheduled a hearing in July 2002 on several issues. Order, May 9, 2002, at 14. Intervenors, therefore, do not respond to LRSD' s argument that as to issues other than those addressed here, \"the LRSD should be granted unitary status and released from court supervision without further evidentiary hearings.\" [ LRSD Mem. - the hearings, it faced the task of defending its performance in this sphere. See,~, Sturgis v. Skokos, supra, 977 S.W.2d at 223 ( \"If there is an ambiguity, a court will accord considerable weight to the construction the parties themselves give to it, evidenced by subsequent statements, acts and conduct.\" [citation omitted]) 3 Brief, at 34] This memorandum begins with a summary of the evidence. The summary, in the form of proposed findings of fact, encompasses the issues addressed here by the Joshua Intervenors: Student Discipline (at 4-19), Improving and Remediating Academic Achievement of African-American Students (at 19-36), Racial Disparities in Achievement ( at 37-40), and Program Evaluation ( at 40-46) . An argument relying upon the factual summaries follows (at 47). The argument is not lengthy, the court's principal task seemingly being the examination of the facts in the light of a concept of \"substantial compliance. 11  Intervenors' fact.ual presentation shows in each instance why substantial compliance is lacking, in the light of the concept of substantial compliance advanced. Results on the Arkansas Benchmark Examinations are set forth as an appendix.' Summary of the Evidence I. Student Discipline A. The Relevant Provisions of the Revised Plan (1.) The provisions of the revised plan relevant to the matter of student discipline are the following. 2.5. LRSD shall implement programs, policies and \\ or procedures designed to ensure that there is no racial discrimination with regard to school discipline. 2.5.1. The LRSD shall strictly adhere to the policies set  Intervenors dispute, in the argument, LRSD' s repetitive suggestion [....,Jl_,_, Mem.-Brief at 2, 34] that termination of jurisdiction would be appropriate if this court found substantial noncompliance, but somehow also was without doubt as to the system's intent to comply with the Constitution absent court supervision. Substantial compliance and future fealty to the Constitution are, in fact, separate components of the exit formula. 4 forth in the Student Rights and responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner. 2. 5. 2. LRSD shall purge students' discipline records after the fifth and eighth grades of all offenses, except weapons offenses, arson and robbery, unless LRSD finds that to do so would not be in the best interest of the student. 2.5.3. LRSD shall establish the position of \"ombudsman\" the job description for which shall include the following responsibilities: ensuring that students are aware of their rights pursuant to the Student rights and Responsibilities Handbook, acting as an advocate on behalf of students involved in discipline process, investigating parent and student complaints of race based mistreatment and attempting to achieve equitable solutions. 2.5.4 LRSD shall work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior. * * * 2.12.2. LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. * * * SECTION 6: LRSD Compliance Program. LRSD shall implement a desegregation compliance program which shall include the following components: 6.1. Compliance standards and procedures reasonably capable of reducing the prospect of noncompliance; 6. 2. Oversight of compliance with such standards and procedures by the superintendent; 6. 3. Communication of compliance standards and procedures to employees; 6.4. Utilization of monitoring and auditing systems reasonably designed to detect noncompliance; .. 6.6. Enforcement of compliance standards and procedures through appropriata disciplinary mechanisms, including the discipline of indi victuals responsible for compliance and individuals responsible for any failure to report noncompliance; and 5 6. 7. After noncompliance has been detected, implementation of all reasonable steps to correct past noncompliance and to prevent further noncompliance, including modification of the compliance program as necessary to prevent and detect further similar noncompliance. B. The LRSD Interim Compliance Report (March 15, 2000) ( 2.) The LRSD \"Interim Compliance Report\" (March 15, 2000) discusses the five sections of the revised plan, which focus on student discipline, at pages 13-17. (a) The text concerning Section 2.5 addresses: adoption of policies (a general policy on non-discriminatibn and policies on discipline records); revision of student handbooks; creation of \"an online student discipline reporting system for each school building ... \"; staff development; a decrease in suspensions and expulsions in the LRSD; the sampling of parent, student, community and teacher attitudes on safety and order in the schools; and expansion of the number of alternative learning sites. [at 13-15] (b) The text concerning Section 2.5.1 (on the Student Rights and Responsibilities Handbook) addresses: the adoption of general district standards on racial disparities in programs and activities and student rights and responsibilities; directing principals to comply with the handbook; informing students and parents of standards; and employing the ombudsman. [at 15] ( c) The text concerning Section 2. 5. 2 ( purging students' discipline records) addresses: adoption of standards; in-service training; and implementation by the Assistant Superintendent for School Discipline (Dr. Linda Watson). [at 15] (d) the text concerning Section 2.5.3 (the ombudsman) 6 addresses: the filling of the position in February 1999 (half-way through the first year of the plan); establishment of goals for the ombudsman's work, including \"[i]nvestigat[ing] parent and student complaints of alleged race-based mistreatment and ... work[ing] to achieve equitable solutions\"; increasing community awareness of the ombudsman and monthly reports on his work. [at 15-16] (e) the text concerning Section 2.5.4 (behavior modification plans for students) addresses: the general process for developing such- plans and an exit process for students eligible to return to a home school from the \"Alternative Learning Center.\" [at 16-17] The totality of the text on behavior modification plans is as follows: Students who exhibit frequent misbehavior have their cases refereed to the schools' Pupil Services Team. The team is comprised of the building administration, the students' teacher, the counselor, the parents and any specialists deemed necessary. The team develops a behavior modification plan as warranted. [at 16] (3.) The March 2000 Interim Compliance Report omits coverage of Section 2.12.2 (investigating causes of racial disparities in programs and activities and developing remedies). [See report at 82-86] (4.) The portion of the March 2000 Interim Compliance Report concerning Plan Sections 6. 0 through 6. 7 ( general desegregation compliance program) does not discuss school discipline. [at 127-29] C. The LRSD \"Compliance Report\" (March 15, 2001) (5.) The LRSD \"Compliance Report\" (March 15, 2001) discusses the five sections of the revised plan, which focus on school discipline, at pages 24-26. 7 (a) The text concerning Section 2.5 addresses: decreases in the numbers of suspensions and expulsion system-wide and for black and white students; the decrease in the number of students committing offenses; the sampling of community and teacher attitudes on school issues (positive views on safety and pupils' feelings on \"belonging at schools\"). [at 24-25] The report also includes this text [at 24]: The number of African-American students suspended decreased 20 percent consistent with the overall reduction in disciplinary sanctions. The proportion of suspensions issued to AfricanAmerican students remained in the neighborhood of 85 percent. The Report describes no particular action directed at the continuing racial disparity. (b) The text concerning Section 2.5.1 (on the Student Rights and Responsibilities Handbook) addresses: school board approval of - general district standards on racial disparities in programs and activities and student rights and responsibilities. [at 25] ( c) The text concerning Section 2. 5. 2 ( purging students' discipline records) addresses: asserted compliance with this provision by school principals and the \"Student Hearing Office.\" [at 25] (d) The text concerning Section 2.5.3 (the ombudsman) addresses [ at 25-26]: training received by the ombudsman; steps taken to increase public awareness of the ombudsman's services; and a description of the ombudsman's activities, which reads as follows: Efforts to raise public awareness of the ombudsman appear to have been successful. In the last year, the ombudsman has been contacted by over 250 parents or students and provided 8 services related to over 450 incidents. In addition, the ombudsman has implemented intervention activities at Badgett Elementary and McClellan High School designed to assist African-American males who demonstrate unacceptable behavior. Efforts are underway to expand these activities to include other schools. (e) The text concerning Section 2.5.4 (behavior modification plans for students) contains only a general description of the asserted process for developing such plans. Contrary to other instances, there is no reference to a school board policy or the numbers of students and schools involved. [at 26] (6.) The part of the March 2001 Compliance Report addressing Section 2 .12. 2 ( investigating causes of racial disparities in programs and activities and developing needed remedies) contains only six lines of text. This text cites the school board's adoption of the general policy on racial disparities in programs and activities and then provides in part: \"In implementing its obligations under the revised plan, the District has addressed racial disparities in ... discipline (Section 2.5) ... 165] 5 \" [at (7.) The March 2001 Compliance Report omits mention of Plan Sections 6.0 through 6.7 (general desegregation compliance program), which had been discussed in only a cursory fashion in the March 2000 report (see paragraph 4 above). [at i-iii] 5 Section 11 of the revised plan for the LRSD provided for release of court jurisdiction \"provided that LRSD has substantially complied with its obligations set forth in [the] Revised plan.\" It added: \"In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD's compliance with [the] Revised Plan\" (emphasis added). 9 D. The Evidence Presented to the Court (8.) The LRSD March 2000 and March 2001 reports and Dr. Linda Watson's testimony stressed reduction in the overall number of suspensions and expulsions. [March 2000, at 13-14; March 2001, at 24; Tr., 11-19-01, at 48, 13-21; at 55, 22 to 56, 15; at 83, 14-21 (Dr. Watson)] 6 However, the data set forth in ex 743, introduced by LRSD, revealed that in 2000-2001, the third year of the plan, while white student suspensions\\expulsions continued to drop (69 fewer, 11.2 percent lower than 1999-2000), black student suspensions\\expulsions increased in that school year (496 more, 12.3 percent higher than 1999-2000). Suspension Index by Year\")] [CX 743 (\"Discipline ( 9.) While asserting that suspensions and expulsions decreased in number, the LRSD acknowledged that racial disparity continued. [March 2001 report, at 24); Watson testimony, 11-19-01, at 83, 14- 21; at 113, 14 to 114, 1; ex 743] 7 (10.) The LRSD reports in March of 2000 [at 13-15] and 2001 [ at 24-25] presented no data showing discipline by school. The 6 In LRSD's affirmative presentation, LRSD identified Dr. Linda Watson as responsible for implementation of Sections 2.5, 2.5.1, 2.5.2, 2.5.3, and 2.5.4 of the revised plan. [Tr., 11-19-01, 'at 25, 16-19] 7 On June 14, 2000, the Office of Desegregation Monitoring (ODM) issued a report titled Disciplinary Sanctions in the Little Rock School District. It sets forth data by school, by sex and race, on the number of students subjected to one or more suspensions. This allowed the LRSD to identify the extent of overrepresentation of black students in discipline in a meaningful manner, and to single out schools with atypical disparities. See Appendix at 5. The LRSD chose to ignore the ODM report. See para. 19, infra. 10 reports set forth no data by sex and race [id.], with the omission of data on disciplining of black males being particularly significant [Tr., 8-2-01, at 892, 5-9 (Associate Superintendent Sadie Mitchell); Tr., 11-19-01, at 124, 4-14; at 132, 12-24 (Dr. Watson); ex 583, at 125 (ODM report noting black males' being suspended \"at significantly higher rates than any other subgroup\"); see also Tr., 8-2-01, at 890, 23 to 891, 13 (Judge Wright)] (11.) The discipline process at the school level involves referrals of students by teachers and imposition of sanctions by administrators. [Tr., 11-19-01, at 151, 155] (12.) The March 2000 and 2001 LRSD reports show no evidence of the development of criteria to identify schools, teachers or administrators involved in atypical racial disparities in discipline [g__,__g_,_, departing from system averages, or in the case of a teacher or administrator in a particular school, departing from the pattern for colleagues in that school). [March 2000 report, at 13-15; March 2001 report, at 24-25] Assistant Superintendent Watson identified no such criteria in her testimony on November 19, 2001. (13.) The LRSD has the ability, by computer, to identify particular teachers, vice principals, and principals, . whose referrals or sanctions evidence atypical racial disparities. This has not been done systematically, if at all. [Tr., 11-19-01, at 123, 7-16; 128, 6-18; 149, 10 to 150, 25; 155, 7-12; 161, 4-13]] (14.) After acknowledging the absence of such disaggregation of data, Dr. Linda Watson testified as follows: Q Okay. So, it wouldn't be possible to correct it, if it was not disaggregated and in writing, would it? 11 A. I guess not sir. [Tr., 11-19-01, at 149, 23-25] (15.) Dr. Watson testified as follows: Q. All right. Is there a group within the District or made up of teachers, administrators, support staff, that are helping to identify and to be responsible for correcting the disparate impact, discipline in the District? A. Not to my knowledge. [Tr. 11-19-01, at 162, 18-23] ( 16. ) Dr. Watson agreed that she \" [has] not prepared a monitoring report with respect to disparities in d~scipline.\" [Tr., 11-19-01, at 114, 4-7] Asked \"[d]id you make a written analysis of discipline data to reveal any potentially systemic problems,\" Dr. Watson testified, \"No sir.\" [Tr., 11-19-01, at 142, 8-10] Asked whether former Superintendent Les Carnine or Associate Superintendent Junious Babbs had \"prepare[d] a causation analysis of discipline disparities,\" Dr. Watson testified, \"Not to my - knowledge no, sir.\" [Tr., 11-19-01, at 130, 1-4] Faced with the question, \"[s]o, there are no plans by which to reduce disparate impact of black students?,\" Dr. Watson, the person responsible for implementation of the discipline sections of the revised plan, testified: \"Not, to my knowledge.\" [Tr., 11-19-01, 135, 6-8; see also id. at 112, 9-17] (17.) Dr. Watson testified as follows: Q. Have you made any recommendations regarding how to address the gross over representation of black boys, in the disciplinary process? A. No, I have not. Q. Have you not publicly stated that there needs to be some more attention devoted to dealing with this problem, because apparently there is a fear factor associated with black boys? A. Yes. [Tr., 11-19-01, at 132, 12-20] 12 (18.) The following testimony of Dr. Watson is particularly significant in view of LRSD's acknowledgement of continuing racial disparities in school discipline and her own recognition of the particular issue regarding black male students. Q. Other than what you have told me, what is the Little Rock School district doing to -- and what you told Mr. Walker, what is the Little Rock School District doing, in addition, to correct the disparity based upon race? A. I can't say that we are looking at it based on race. We are looking at the number of suspensions. We are trying to offer programs that African-American students, as well as other students, to participate in. [Tr., 11-19-01, at 163, 16-25; emphasis added] (19.) The Office of Desegregation Monitoring distributed on June 14, 2000 a report titled Disciplinary Sanctions in the Little Rock School District. [CX 583] This report set forth discipline statistics by race, by school, for the school years 1993-94 through 1998-99, including the numbers of student in each school receiving one or more sanctions. 8 The report also contained seven recommendations. [CX 583, at 127] Dr. Watson testified as follows regarding the ODM report. Q. Now, did you ever meet with the ODM after the ODM issued its report for the purpose of either better understanding their recommendations or for seeking ways to implement their recommendations? A. No, I did not, but I sure wanted to. Q. Why didn't you? 8 The data by student, by race, allows a comparison of the proportions of black and white students in a school receiving suspension or expulsion as a form of discipline. The comparisons in the individual schools can then be compared to those of other schools, allowing identification of schools with atypical disparities. 13 A. Because I took -- once the report came out. we discussed it in the cabinet. and it was the decision at that time that we would not respond or do anything. Q. That's right. Dr. Carnine told you not to meet with them, didn't he. A. At that time, yes he did. Q. I see. A. That was the decision that came from cabinet, we were not going to address the issues. [Tr., 11-19-01, at 177, 11-25; emphasis added] ( 20.) Dr. Watson testified as follows regarding behavior modification plans. Q. [Y]ou have indicated that you have responsibility under 2.5.4 for creating Behavior Modification Plans, is that correct? A. Yes, I did say that. Q. How many such plans did you develop each year? A. I couldn't say how many I developed. Q. You never had -- you do not have a report, which documents the number you have developed? A. No sir, I do not. Q. What is the evidence to show that it was actually done? A. In cases that I heard in student hearings, when we needed to do Behavior Modification Plans, there were times that we stopped and did the plans there in the office. Q. I see. A. There were times that I referred them back to the schools, Pupil Services Team, to do Behavior Modification Plans. Q. I see. Do you agree with this statement? The district does not have any document compiling the total number of Behavior Modification Plans or the race or gender of students for whom Behavior Modification Plans have been prepared? A. I agree. I do not have the numbers. 14 Q. All right. Do you agree with this statement? The District does not have nay document entitled, \"Monitoring Report of Behavior Modification Plans.\" A. I would agree . [Tr., 11-19-01, at 135, 9 to 136, 12] ( 21.) The testimony revealed that Dr. Watson had a vast array of responsibilities, more than one person could reasonably be e xpected to accomplish . The evidence also reveals that Dr. Watson, an \"assistant superintendent,\" sought additional personnel, that her plea did not bear fruit, and that additional personnel were needed to address racial disparity in discipline in individual schools. [Tr., 11-19-01, at 114 , 4 to 119, 8; see also id. at 142, 25 to 146, 23 (example of type of effort needed to work with one school)] . E. Findings Concerning Overall Compliance with the Plan ( 2 2 . ) Section 2. 5 of the revised plan is devoid of any statement that the requisite \"programs, policies and\\or procedures\" to be \"implement [ ed]\" pursuant to this section are limited to those set forth in Sections 2.5.1, 2.5.2, 2.5.3, and 2.5.4. of the plan. Ms. Linda Watson's affirmative testimony presented by LRSD was not limited to the subject matter of these four sections. [.E....,__g__._, Tr., 11-19-01, at 27-30] The text of Sections 2.12.2, 6 . 1, 6.2, 6. 3 , 6.4, 6.6, and 6.7 of the revised plan show that these sections are relevant to the subject of racial disparities in school discipline . Moreover, the text of these sections contains no indication that their content as to the discipline sphere can be satisfied merely by the fulfillment of the requirements of Sections 2.5.1, 2.5.2, 2. 5. 3, and 2.5.4. of the plan (assuming t hat LRSD substantially 15 complied with each of these sections). (23.) There is no predicate for the court to find a lack of substantial compliance with Sections 2.5.1, 2.5.2, and 2.5.3 of the revised plan. However, the record does establish a lack of substantial compliance with Sections 2.5 and 2.5.4. (24.) The record establishes a lack of substantial compliance with Section 2.5 for the following reasons. (a) The LRSD report of March 2000 [ at 13, 15] and the testimony of Dr . Linda Watson [Tr., 11-91-01, at 27-28] identified LRSD Policies AC, ACB, JB and JBA as steps implementing Section 2.5 of the revised plan. [ CX 719 (cited standards)] However, these standards merely restate the LRSD's existing obligation to comply with the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000dd( 4)(a) (barring racial discrimination in programs receiving federal financial assistance) . . Moreover, these standards do not even mention disciplining of students. [CX 719] 9 (b) Dr. Watson's outlines for training of principals omitted the matter of disparate discipline generally and discipline of black males [ ex 672-76; Tr., 11-19-01 at 122, 14 to 123, 6], despite awareness of these issues. See paras. 9, 10. (c) The LRSD was aware of continuing racial disparities in the imposition of school discipline generally and in particular with 9 LRSD regulation JBA-R implements policy JBA. It is noteworthy that this regulation addresses explicitly each school's obligations to insure nondiscrimination in \"programs and activities,\" with three required strategies, but does not mention discipline. [CX 719] 16 regard to black male students. See paras. 9, 10. The system had the capability by computer of identifying schools with atypical racial disparities in discipline; the system also had the capability of identifying teachers whose referrals and administrators whose discipline actions were marked by atypical racial disparity. See paras. 9 \u0026amp; n. 6 , 13 . The LRSD did not implement any programs , policies and\\or procedures geared specifically to such schools or personnel. See paras. 12-18. (25.) The LRSD's discussions of \"behavior modification plans for students who exhibit frequent misbehavior\" [ Section 2. 5. 4 J , and other evidence on this topic, show mere lip service to the concept, rather than \"work[ing] with students and their parents to develop\" such plans. See paras. 2(e), 5(e), 20; compare paras. 5(d) and 5(e) (in the March 2001 report, discussion of the ombudsman contains statistics on parent contacts and matters worked on, while coverage of behavior modification plans is limited to general description of process for developing plans). (26.) LRSD's failure to comply with Section 2.12.2 as applied to discipline is obvious. The system was aware of racial disparity and had the capability of isolating schools and staff with atypical problems. The system did not investigate the matter; and, therefore, could not develop remedies. The system did not commit sufficient personnel to the issue. See paras. 9, 10, 12-18. Indeed, Dr. Linda Watson, the official responsible for compliance with the discipline sections of the plan [Tr., 11-19-01, at 25, 16-19], and the system's major witness on the topic, testified: \"I can't say 17 that we are looking at it [discipline issue] based on race.\" [Tr., 11-19-01 at 163, 21-25] (27.) Similarly, LRSD's failure to comply with Part 6 of the revised plan (\"LRSO Compliance Program\"), as applied to discipline, is obvious. Again, LRSD was aware of the general pattern of discipline disparity, and the particular issue about black male students. The system did not adopt standards to identify schools and staff with atypical discipline patterns. It did not analyze available data based upon such standards. It did not inform staff of such standards and procedures. It did not enforce such standards, or require remedial actions to address problems identified. Neither the superintendent, nor his designees oversaw compliance with any such standards and procedures. See Sections 6.1, 6.2, 6.3, 6.4, 6.6, and 6.7 and paras. 9, 10, 12-18, 21. (28.) Finally, LRSD's performance with respect to student discipline does not evidence substantial compliance with its agreement to \"in good faith exercise its best efforts to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of the LRSD. \" [Section 2.1] The evidence supporting this conclusion includes the following. [i] The district did not commit adequate personnel to the issue of discipline. See para. 21. [ii] Despite knowledge of the continuing racial disparity in discipline, the system, did not study the causes, or identify and follow-up on schools and personnel with atypical disparate patterns. See paras. 9, 10, 12- 18. [iii] Or. Watson testified, as noted, that \"I can't say that we 18 are looking at it [discipline issue] based on race.\" See para. 18. [iv] Upon receipt of the Office of Desegregation Monitoring report on school discipline in June 2000, the decision of the superintendent and his cabinet was \"at that time ... we would not respond or do anything\"; \" issues.\" See para. 19. . we were not going to address the II. Improving and Remediating Academic Achievement of AfricanAmerican Students A. The Relevant Provisions of the Revised Plan ( 29.) The provisions of the revised plan relevant to the subject of improving and remediating the academic achievement of African-American students are the following. 2.7. LRSD shall implement programs, policies and\\or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this revised plan. 2. 7 .1. LRSD shall assess the academic programs implemented pursuant to section 2.7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program. * * * 2.12.2. LRSD shall implement policies and procedures for investigating the cause of racial disparities in programs and activities and developing remedies where appropriate. * * * SECTION 6: LRSD Compliance Program. LRSD shall implement a desegregation compliance program which shall include the following components: 19 6.1. Compliance standards and procedures reasonably capable of reducing the prospect of noncompliance; 6. 2. Oversight of compliance with such standards and procedures by the superintendent; 6. 3. Communication of compliance standards and procedures to employees; 6. 4. Utilization of moni taring and auditing systems reasonably designed to detect noncompliance; ... 6.6. Enforcement of compliance standards and procedures through appropriate disciplinary mechanisms, including the discipline of individuals responsible for compliance and individuals responsible for any failure to report noncompliance; and 6.7. After noncompliance has been detected, implementation of all reasonable steps to correct past noncompliance and to prevent further noncompliance, including modification of the compliance program as necessary to prevent and detect further similar noncompliance. B. The Shortcomings in the Educations Afforded Black Students and the Standards Adopted to Address the Problem ( 3 o. ) Two aspects of Section 2. 7 of the revised plan are particularly noteworthy. First. The LRSD obligation is not limited to \"design [ ing]\" programs and other initiatives; rather, the initiatives must also be \"implement[ed.\" [See Tr., 8-1-01, at 686- 87 (Leslie)] Second. The programs and other initiatives \"[include] but [are] not limited to [those in] Section 5 of [the] revised plan.\" (31.) Dr. Leslie Carnine became Superintendent of the LRSD effective with the 1997-98 school year. [Tr., 11-19-01, at 341-42] During testimony on November 19, 2001, when he had served for four years, Dr. Carnine provided the following overview. Mr. Walker, when we put the new plan together, if you will remember, and in fact -- if I can find the document, and I think we might be able to present it, but I said at the time 20 that it was my statement to you that I firmly believed that if we remediated the education of black students and made a real effort. where I felt that it had been missing, that by that very remediation effort of increasing their achievement, we would help to, in fact minimize the disparity between black and white achievement. Now, that statement is the one that I have made continuously over the past four years, I have said nothing different, not that I am not -- I am certainly concerned about that disparity issue. It has been my life's work. But my point is the only way you can do it is not worry about the disparity, but let's just teach kids. And I didn't feel that we were doing that good a job. I think we are doing a better job now. Are we where we need to be? Not absolutely. but we are getting there .... [At 450- 51; emphasis added] (32.) During the 1998-99 school year, year one of the new plan, LRSD staff under the direction of Associate Superintendent Bonnie Lesley, who joined the staff at the end of June 1998 [Tr. 8- 1-01, at 670, 18-19], undertook a comprehensive review of the educational program, including students' test scores. This review yielded, ultimately, the view that the curriculum for grades K-12 in language arts (including literacy), mathematics, science and social studies needed to be replaced. [March 2000 report, at 45; Tr., 11-20-01, at 550, 10-14] ( 33.) The review of programs during 1998-99 examined the development of early literacy skills in the light of results for 'LRSD students on the Arkansas Grade 4 Benchmark Examination (Spring 1998 and Spring 1999) 1 0 and the Stanford Achievement Test (SAT 9) 10 Arkansas has adopted curriculum frameworks for language arts, mathematics and other subjects. For each framework, there are benchmarks, identifying, in grade level bands, knowledge and skills which it is hoped students will master. The State requires local districts to give benchmark examinations in literacy and mathematics in grades four and eight. These instruments are 21 (Grade 3, Fall 1998) .ii On the state-mandated examination, 42 percent of LRSD students performed at the lowest level ( \"Below Basic\") and only 30 percent of students at the levels deemed acceptable. Significantly, \"[f]ifty-three percent of AfricanAmerican grade 4 students performed at the 'Below Basic' level, compared to 20 percent of white students.\" The results for grade 3 on the nationally normed SAT 9 reading test were consistent. \"In both cases only approximately 30 percent of LRSD students performed at the 'Proficient' or 'Advanced' levels ... , again indicating that far too few students are becoming good readers by grade 3.\" [CX 703, Doc. 1 at 12-13]= ( 34.) The federal educational program known as \"Title I\" originated in the Elementary and Secondary Education Act of 1965. It provides financial assistance to local school districts to support help for low achieving students. The March 2000 report noted LRSD's receipt of $4.2 million in Title I funds, annually. designed to show a student's level of mastery of benchmarks appropriate to the students' grade level. The results are reported in terms of four levels (below basic, basic, proficient, and advanced). The State's goal is that all students reach at least the level of proficient. [March 2001 report, at 56; Tr., 8-1-01, at 692, 18 to 694, 9; \"[LRSD] Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status,\" March 15, 2002, 'Tab 5, at 9 J ii For a description of the SAT 9, see the March 2001 report, at 56. i 2 The exhibit did not discuss SAT 9 scores by race. The record contains SAT 9 reading scores by race for grade 5 for 1998-99 (but not grade 3 scores). On \"total reading\" the average percentile score for black LRSD fifth grade students was 27 and that for LRSD white students 69. [CX 741] 22 Almost all LRSD schools received some Title I funds in recent years. \"The goal of Title I is to provide supports so that all children can achieve the rigorous curriculum content standards established by the State and the [local] District.\" [March 2000 report at 47, 68; see 20 u.s.c. Sec. 2701] ( 35.) The review of instructional programs during 1998-99 encompassed Title I programs. The March 2000 interim report described some of the findings as follows: An analysis of performance data found that most Title I schools had not been meeting their improvement goals. The staff found that part of the problem was the absence of or lack of consistent delivery of District-established literacy and math curriculum. These problems were corrected through the new Pre-K Literacy Plan and the new NSF mathematics curriculum. Another part of the problem was the lack of alignment between the Title I programs and the reaular curricula in literacy and mathematics. [At 68; emphasis added] Dr. Leslie provided consistent testimony about the findings of the review. [Tr., 81-01-01, at 700-02 (noting use of \"pull out programs\" which \"even result in the child missing the instruction on the things that are going to be tested\")] (36.) Testimony by Dr. Lesley revealed the consequences for Title I participants, disproportionately black youth [Tr., 8-1-01, at 702], of the lack of alignment of the content of the Title I program \"and the regular curricula in literacy and mathematics.\" . Alignment is absolutely critical, particularly in an urban school district, because alignment means that you are going to test kids over, that you have given them a chance to learn that, that you have got that included in the curriculum. And so without alignment, poor kids in particular suffer the most, because there may not be an opportunity for them to get that knowledge and skill anywhere else .... [Tr., 11-19-01, at 199-200] (37.) The perverse and ironic impact of the content of the 23 Title I program on LRSD's black students has been substantial. The program is longstanding (i.e., originated in 1965) and in the relevant time frame has supported activities in almost all Little Rock schools. The low scores of LRSD's black middle school and high school students on the state benchmark and the SAT 9 tests are no doubt due, in part, to their isolation from important parts of the curriculum by Title I programs (which were supposed to help them attain the knowledge and skills which LRSD identified as important for all students). (38.) Dr. Lesley also identified general problems in the math curriculum, prior to its revision. \"The old curriculum really focused on two strands of the [State] standards, and now we have a curriculum that encompasses all six strands, which include such things like statistics and problem solving and geometry and algebra, even for young children. So, that has been a big change for teachers.\" [Tr., 11-19-01, at 272, 6-11] ( 39.) The information gleaned about the content of the educational program and student outcomes on standardized tests led the LRSD leadership to conclude that a complete overhaul of the educational program was necessary. [CX 703, Doc.1 at 12-13] This overhaul involved many areas. For example, the March 2000 report described the changes needed to implement the PreK-3 literacy plan, alone, as follows: \"The plan required restructured schools and school days, alignment of special programs with general education, new standards-based curriculum, appropriate pedagogy (instruction), materials, and assessments, high-quality and intensive professional 24 development, effective interventions, and parent involvement.\" [At 97] The restructuring also involved mathematics, science and social studies curricula. See para. 32; see also Dr. Leslie's testimony regarding the magnitude of the attempt to completely overhaul the educational program. [Tr., 11-19-01, at 198, 23 to 207,12] (40.) In the March 2000 and March 2001 reports, the LRSD identified many policies, practices and procedures, some general and some specific, as designed to fulfill the obligation which it assumed in Section 2.7 of the revised plan. Sub-paragraphs (a)-(e) describe central elements of the LRSD commitments. (a) \"The District developed in 1997-98 and 1998-99 comprehensive curriculum content standards, plus grade-level and course benchmarks in K-12 English language arts, mathematics, science, and social studies. In addition, curriculum maps were constructed for each area to ensure that the LRSD standards were aligned with the state's curriculum frameworks and assessments.\" [March 2000 report, at 45; Tr., 11-20-01, at 513, 17-21] (b) Staff members developed durihg 1998-99 and the Board of directors approved in June 1999 a PreK-3 literacy plan. The March 2000 report stated that \"PreK-3 literacy is a major, if not the major priority of LRSD . \" \"The plan required restructured schools and school days, alignment of special programs with general education, new standard-based curriculum, appropriate pedagogy (instruction), materials, and assessments, high-quality and intensive professional development. effective interventions, and parent involvement. [March 2000 report, at 96-99; see also id. at 25 90 [assessment to \"[identify] [students] for early interventions\"] (c) The March 2001 report states: Implementation of standards-based, inquiry-based instruction in mathematics and science, intensive and sustained professional development for teachers, and multiple assessment measures have been put in place to ensure improvement. New standards-based curricula in mathematics in grades K-8 and in science for grades 1-9 have been adopted. The curricula for other grade levels are being adapted locally to reflect a standards-based, inquiry-centered approach. The number of K-12 mathematics teachers who received training and materials to fully implement the new mathematics program increased from 215 teachers in the 1999-2000 school year to 515 teachers during the 2000-2001 school year. The number of K-12 science teachers who received training and materials to fully implement the new science program increased from 50 teachers in the 1999-2000 school year to 243 teachers during the 2000-2001 school year. Another 108 mathematics teachers and 4 5 3 science teachers began implementing part of the standards-based program during 2000-2001. All teachers in mathematics and science are scheduled to fully implement the standards-based program during the 2001-02 school year. [At 115] (d) Dr. Leslie testified that \"interventions\" for students whose achievement is not at the standards deemed desirable is a vitally important part of the new literacy program. [Tr., 8-1-01, at 679,14 to 681, 15] Interventions (and remediation) are a point of emphasis in the LRSD reports of March 2000 and 200113 and in policies adopted by the LRSD Board of Directors to which they refer (summarized in next paragraph). This emphasis is in keeping with Section 2. 7 of the revised plan which requires designing and implementing actions \"to improve and remediate the academic achievement of African-American students ... \" (emphasis added). (e) The LRSD adopted the following relevant standards. 13 See March 2000 report at 43, 44, 4 7, 48, 49; March 2001 report at 51-52, 62, 64, 125-26. 26 ( i) The Board of Education adopted Policy IHBDA ( \"Remedial Instruction\") on July 22, 1999, after year one of the plan. It requires \"the district and each school\" to make \"comprehensive and aggressive early intervention efforts, especially in PreK-3 reading and mathematics, with continuing support through complementary remediation efforts on an as-needed basis to promote and sustain the standard levels of achievement.\" \"Intervention\\remediation efforts of the Little Rock School District will be comprised of a broad range of alternatives  11 [CX 719, Policy IHBA] (ii) The Board approved Regulation IHBDA-R \"Intervention\\remediation\") on October 21, 1999, after the start of year two of the plan. It provides, in part: Assistance will be provided for any student who is performing below the standard levels of achievement in the areas of mathematics and reading\\language arts. Intervention\\remedial programs include re-teaching, tutoring, extended-day programs, Saturday programs, summer school, and special courses offered within the school day in addition to the core instruction. Program designs may differ from school to school, depending upon funding sources, needs of students, and decisions made by the Campus Leadership Team. [CX 719, Reg. IHBDA-R] (iii) The School Board approved Regulation IHBDA-R2 (\"Student Academic Improvement Plan\" (SAIP)) on August 24, 2000, after year two of the plan, in compliance with Act 999 of 1999. It requires teachers \"of English language arts and mathematics\" at each level to prepare individual SAIPs for \"each student who [ i] is not performing on grade level (K-4); [ii] is not 'proficient' on any part of the state's benchmark examinations - primary (grade 4), intermediate (grade 6), middle school (grade 8); and [iii] is not scoring 'proficient' on End-of-Course examinations in literacy, 27 geometry, and\\or algebra.\" \"School and individual teachers are encouraged to develop plans for additional students who, in their judgment, require remediation or intervention. 11 The regulation further provides: The Student Academic Improvement Plan (SAIP) will document a student's achievement through District-adopted assessment tools, consideration of personalized education services (special education, English-as a- Second language, Title I, gifted programs, etc.) identification of areas of need, specific skills to improve, strategies that will be implemented (see IHBDA-R), and progress. [CX 719, Reg. IHBDA-R] C. Deficiencies in Implementation Establishing a Lack of Substantial Compliance with Secs. 2.7.1. 2.12.2 \u0026amp; Part 6.0 (41.) The content of paragraphs (42) through (57) supra shows that the deficiencies in implementation of the Section 2.7 activities identified by the LRSD are such that a finding of substantial compliance with Section 2. 7 is not warranted. The LRSD's failure to substantially comply with Section 2.12.2 and Part 6 of the revised plan, as to the area of academic achievement, is also apparent. (42.) The LRSD Board of Directors approved the PreK-3 Literacy plan in June 1999, after year one of the revised plan. [March 2000 report, at 99] ( 4 3. ) Teachers did not receive \"their copies of the new curriculum documents\" until \"August 1999 11 the start of the school year (and the start of the second year of the revised plan). [March 2000 report at 45] \"All teachers did not begin the [1999- 2000] year with the training to implement the new curriculum, teaching strategies, and materials. Training occurred throughout 28 the year, and some teachers were not trained at all in 1999-2000.\" [March 2001 report, at 91 ] (44 . ) LRSD has emphasized that the training and retaining of teachers is a vitally important component of the new educational programs. (a) Dr. Leslie testified as follows: It [professional development] is probably the most important thing that we have done, and we've spent all of our treasury on that. A great deal of time, a great deal of energy, a great deal of money, trying to be sure that every teacher has at least a minimum level of training in several areas, because one of the things that was overwhelming about the plan and its implementation is that -- particularly for elementary teachers, is that they had to learn new curriculum, they had to learn new materials, they had to learn new instructional strategies, and many of them had to change some belief systems, in order to make it work. And so, it takes more than a one workshop approach to get all that done. It has to be followed up over and over and over. And so, that is one reason we have emphasized it so much. The Board has allocated every dime they could to that effort over the last three years. [Tr., 11-19-01, at 207, 13 to 208, 8] (b) The importance of teacher training was described as follows in the \"Year 2 Evaluation: The Effectiveness of the Pre-K-2 Literacy Program in the Little Rock School District 1999-2000 and 2000-2001\" (October 2001) by Dr. Lesley and other LRSD staff. 1  The most expensive - and the most important - piece of the cost of any program implementation designed to improve student achievement is always the cost of professional develop-ment . . 'In study after study, it is the quality of the teacher not variation in curriculum materials that is identified as the critical factor in effective instruction. That is not to say that materials are wholly unimportant, but that investing in teacher development has a better result than 14 This document appears at Tab 4 of the \" [ LRSD] Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status.\" 29 investing in curriculum materials.' ... [At 96] (45.) Nevertheless, the \"Year 2 Evaluation\" above identified serious shortcomings in the teacher training needed to implement the Pre-K-3 literacy program. The report states that 12 days of \"Ella training\"have been offered to K-2 teachers during the last two years. [At 97] It then sets forth a table, by school, showing the amounts of training for K-2 teachers. The average number of days per school is 4.65 across all levels. Moreover, in 15 of the 35 schools listed, the average number of days is 2.4 or fewer days. [At 98] The report states: From the table above, one can infer that implementation is, in general still at a low level since the number of days of ELLA training experienced by teachers is 4.65 of the 12 possible days available. Kindergarten teachers have the highest level of participation, then grade 1 and then grade 2. Kindergarten, probably not coincidentally, is the highest performing grade level. [At 98] (46.) The LRSD employed lead teachers in the areas of math and science to promote the change from the traditional math and science curriculum to the new curriculum. Among other things, the lead teachers used an observation form to assess \"the implementation level and quality of implementation of the teachers\\schools in their cluster.\" LRSD reported the survey results for 1999-2000 in the March 2001 report. The report explains implementation codes as follows: \"3 - fully implementing standards-based; 2 - partially implementing standards-based; 1 - minimally implementing standards based; O - not implementing standards based.\" The average score for 33 sites was 2.2. However, there were 10 scores of 1.8 or lower. The report explains scores for quality of implementation as 30 follows: \"4 - excellent; 3 - good; 2 - fair; 1 - poor.\" The average score for quality of implementation was 2.6 for 32 sites. The report characterizes the results as follows: The District's average implementation score was 2.2, which represents a beginning shift from partial implementation to full implementation of a standards-based curriculum. The District's average quality score was 2.6, which represents a trend toward quality instruction in math and science. Based on the data provided, the District is in an active transition from the traditional curriculum to standards-based curriculum in both quality of implementation and the quality of implementation. See March 15, 2001 report at 122-24 (reports for elementary schools and middle schools only). (47.) The LRSD has also reported on the implementation of the new math and science curricula for the 2000-01 school year. Based upon reports by lead teachers, the average implementation score was 2. 4 ( on a scale of 0 to 3) and the average quality of implementation score 2.7 (on a scale of 1 to 4). Unlike 1999-2000, in 2000-01 LRSD reported only district averages and not scores by school. [See \"Little Rock Comprehensive Partnerships for Mathematics and Science Achievement - Annual Progress Report for 2000-2001,\" Tab 5 to LRSD memorandum brief previously cited] ( 48.) The LRSD did not implement the new social studies curriculum until 2001-02, after year three of the plan. [Tr., 11-20-01, at 427, 2-3; compare para. 40(a) above] Indeed, Dr. Leslie seemingly testified at one point that the entire new curriculum was implemented for the first time in the \"Fall of 2000 11 [Tr., 11-20-01, at 518, 22-25], rather than in the Fall of 1999. Compare para. 43. 31 (49.) The October 2001 report on the Pre-K-3 literacy program after year two, previously cited, states that the study \"does not include . . an examination  of the different forms of inter-ventions. II [Tab 4, at 83] Paralleling this admission, Associate Superintendent for Instruction Lesley, and Ms. Sadie Mitchell, Associate Superintendent for School Services, could not provide concrete information on the implementation of SAIPs, or other interventions for students requiring additional assistance to satisfy learning standards (see para. 40(e)). [Tr., 8-1-01, at 609, 18 to 611, 23 (Mitchell); at 679, 18 to 684, 4 and 736, 17 to 739, 18 (Dr. Lesley)] It is obvious from test results that black students are more likely to need interventions. See para. 33. (50.) As part of the new Pre-K-3 literacy curriculum, LRSD teachers have administered in the Fall and the Spring in grades K-2 the \"Developmental Reading Assessment.\" The results have varied sharply from school to school and even within the same school from year to year. Dr. Leslie attributed these variations to \"the degree to which teachers had implemented the new curriculum.\" [Tr., 8-1-01, at 731, 21 to 732, 2] (51.) LRSD staff have recognized that there has been insufficient monitoring of classrooms to evaluate whether the new PreK-3 literacy curriculum is actually being implemented. Lack of a monitoring plan through classroom observations to document the level of implementation is a problem. This weakness not only resulted in a late identification of poor implementation in some cases, but it was also a weakness in evaluating the consistency of program implementation. See Mem. Brief in Support of Motion for an Immediate Declaration of 32 Unitary Status (March 15, 2002), Tab 4, at 105. (52.) As noted, the LRSD is required to administer, each year in April, State Benchmark Examinations in literacy and mathematics to fourth and eighth graders. The State's goal is that all students reach the levels of proficient or advanced on each examination, which measure mastery of knowledge and skills, identified as important for each student to master. Results by race for the school years 1998-1999, 1999-2000, and 2000-2001 appear in the appendix, infra; see also note 10, para. 33, supra (description of Benchmark Examinations). (53.) On August 1, 2001, Dr. Lesley testified, in part, about the 1998-99 benchmark results in math and literacy for black fourth graders (administered in April 1999). Only 8 percent of these black youth attained the levels of proficient\\advanced in math and only 20 percent in literacy. Dr. Lesley's testimony included the following content. Q. Now, in terms of the 1998-'99 results for Little Rock black students in the fourth grade on math, eight percent were proficient or advanced, is that right? A. Let me look, check for sure. In '98-99, yes, AfricanAmerican students were eight proficient. Q. Eight percent, okay, proficient. A. At or above proficient. Q. Correct. So that's basically one out of 12 of the students who have been tested, is that right, roughly? A. Eight percent, uh-huh. Q. Now, you regarded that as a serious problem, correct? A. Certainly. 33 o. And a major part of your explanation for that result is that those students. in terms of the curriculum they had received. had not been exposed to what you call many of the strands of the benchmarks for math. right? A. Yes. Q. For students to show mastery on a test like that, they need to be exposed to the material, right? A. Absolutely. Q. Now, in terms of black fourth graders in the literacy, 20 percent were proficient or advanced, is that right? A. I want to check and make sure I don't misrepresent. In '98- '99, yes, 20 percent. Q. Did you see that as a serious problem? A. Of course. o. And do you think that. again. that part of the reason for that was that the curriculum those students had had not covered many of the strands in the state benchmarks for literacy? A. Yes. [Tr., 9-1-01, at 694, 8 to 695, 21; emphasis added] (54.) As noted, state benchmark exam results are also available for 1999-00 and 2000-01 (year three of the new plan). The results for 1999-2000 show some improvement. However, in 2000-01 (April 2001 test), the proportions of LRSD black youth attaining the levels of proficient\\advanced were -- 4th grade literacy 19%; 4th grade math 14%; 8th grade literacy 18%; and 8th grade math only 49.c I 0. See tables infra in appendix. These results are on a par with the results for 1998-99, which evidenced to Dr. Lesley that black youth had not been exposed to curricula covering all of the gradeappropriate strands in the state curriculum frameworks. To be fair to the LRSD, no child will have had five years of exposure to the 34 new curricula (if it is implemented) until those children tested in 2003-04 (April 2004) . 1 5 (55 . ) The results on the April 2001 State Benchmark Examinations and the other evidence reveal that LRSD had not implemented for the black students tested: (a) a curriculum marked by alignment with the state benchmarks; (b) teaching by teachers with the training which LRSD identified as an essential part of its program pursuant to Section 2. 7; or ( c) the interventions for students experiencing difficulties, also identified by LRSD as an essential facet of its program for compliance with Section 2.7. (56.) Scores on State Benchmark Examinations as of April 1999 for African-American students evidenced a situation where they had not been exposed to the content of the curriculum. See para. 53. The longstanding, massive Title I program was organized in a manner detracting from, rather than, as required by federal law, contributing to low-achieving students (disproportionately black) mastery of system instructional goals for all pupils. See paras . 34-37. The LRSD identified the need for a complete overhaul of the K-12 educational program in core courses, with implementation not commencing until year two of the plan. See paras. 32, 39, 40(a). The overhaul required change in many aspects of system operation. There were shortcomings in teacher in-service training, a pivotal area, as well as in implementation of the new math and science curricula. See paras. 43-47. There was admittedly no systematic 1 5 A student in kindergarten in 1999-2000, who makes normal progress, will reach the fourth grade and take the grade four benchmark examinations in April of the 2003-04 school year. 35 review of actual implementation of interventions for those students not doing well, another area of high importance, particularly for African-American youth given their achievement levels. See para. 49. Results of State Benchmark Examinations administered in April 2001 again established the lack of deli very of curriculum to African-American students. See para. 54. Finally, the SAT 9 tests for 2001 evidenced some backsliding in terms of addressing racial disparities in achievement. See para. 61(b), infra (SAT 9 results). ( 57.) In light of the condition of education for black students in the LRSD at the outset of the revised plan, the program changes which the LRSD identified as necessary, and the lack of implementation of key facets of those changes (as shown by evidence about those initiatives and test results), the court finds that the LRSD did not substantially comply with the obligation which it assumed in Section 2.7 of the revised plan to implement certain programs, policies and\\or procedures. (58.) There was also a lack of substantial compliance in this area with Sections 2.12.2 and Sections 6.1 - 6.7, generally applicable elements of the revised plan. The LRSD did not adopt, and therefore could not follow-up on, \"compliance standards\" [Section 6.1]. [Tr., 8-1-01, at 671, 21 to 675, 6 (Dr. Lesley)] The LRSD was of the view that it need not address the racial gap in achievement, as such; the staff therefore did not seek to devise a remedy directed to decreasing this \"racial [disparity]\" as such, violating Section 2.12.2 of the revised plan. See Part III of this memorandum, infra. 36 III. Racial Disparities in Achievement (59.) The Revised Desegregation and Education Plan provides for the continuation in force of \"The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989.\" [Section l(a.)] Testifying after being superintendent of schools for four years, Dr. Les Carnine agreed that he understood that the agreement with the State required the LRSD to narrow the achievement gap between black and white students. [Tr., 7-6-01, at 378, 21-24] See also at 378, 2-7 [\"Mr. Walker: Well, Your Honor, let me say this. We have the State agreement - The Court (Judge Wright) That's a settlement agreement, that's correct, about the achievement disparities, about reducing that, that's true.\"]; Tr., 11-20-01, at 564, 1-4 (Dr. Leslie) . i 6 (60.) The LRSD did not \"[develop] any particular program by which to remediate achievement disparity between African-American students and other students. . \"during Dr. Carnine's tenure as superintendent. [Tr., 7-6-01, at 374, 25 to 375, 1-4 (Dr. Carnine); Tr., 8-1-01, at 622, 18 to 623, 9 (Associate Superintendent Mitchell); see also Tr. 7-6-01, at 375, 14 Carnine)] to 3 7 9 , 18 (Dr. (61.) The results of the State Benchmark Examinations and the Stanford Achievement Test show, at best, continuing massive disparities in achievement between black and white students and, at \"See also ex 594, at 11 [\"The achievement gap between African American and other students is always an issue of concern in the Little Rock School District. A major emphasis in the PreK-3 Literacy Plan is the significant narrowing and eventual elimination of that gap.\"] 37 worst, increasing disparities during the term of the revised plan. (a) On the Benchmark Examinations: [ i J the proportion of fourth grade white students attaining the proficient or advanced levels in literacy has exceeded the like proportions for black students by 3.1 times (1998-99), 2.2 times (1999-2000), and 3.3 times (2000-01); [ii] the proportion of fourth grade white students attaining the proficient or advanced levels in mathematics has exceeded the like proportions for black students by 6. 6 times ( 1998-99), 4 .1 times ( 1999-2000), and 3. 7 times ( 2000-01); [ iii J the proportion of eighth grade white students attaining the proficient or advanced levels in literacy exceeded the like proportion for black students by 4.1 times (2000-01); and [iv] the proportion of eighth grade white students attaining the proficient or advanced levels in mathematics exceeded the like proportion for black students by 10.3 times (2000-01). See appendix infra. (b) Results on the nationally normed SAT 9 test for LRSD students for the period 1996-97 through 2001-02 seemingly reflect an increase in the achievement gap. Twenty-one comparisons are possible in the data which covers grades 5, 7, and 10. The following comparisons are for the first (1996-97) and last {2001- 02) years of the six year period. [i] The gap between the average percentile scores of black and white youth increased in 20 of 21 instances; [ii] over the six years, the average percentile scores for black students increased in 6 instances, remained the same in 6 instances, and declined in 9 instances; [iii] over the six years, the average percentile scores for white students increased in 17 38 instances, remained the same in 2 instances, and declined in 2 instances. [CX 741, at 1] ( 62.) The LRSD has administered the Developmental Reading Assessment (ORA) in the Fall and Spring in grades K-2 beginning in 1999-2000. The LRSD maintains that the results show a narrowing of the achievement gap in reading.[lhg_._, Tr., 11-20-01, at 409, 21 to 410, 4] However, test results on the ORA depend on a classroom teacher's judgments on his\\her students' abilities to read and to comprehend a series of progressively more difficult reading selections. In the spring, the teacher is in part judging her\\his own performance. The LRSD has recognized this issue: \"One caution, therefore, interpreting the data is that the teacher has scored his\\her own students' performance, and bias may be possible.\" [Year Two Report on the PreK-3 reading program, Tab 4 at 21] There is yet to be like progress, if any progress, on either the State Benchmark Examination or the SAT 9. See also Tr., 8-1-01, at 721, 12 to 726, 12 (lack of a predicate for LRSD to use ORA to evaluate achievement gap by race)] (63.) The LRSD has acknowledged problems prior to the effort to completely overhaul the K-12 program, which would harm black students disproportionately and exacerbate the achievement gap. The LRSD curriculum did not cover various strands of the State benchmarks. The Title I program emphasized \"pull out programs\" which isolated participants, disproportionately black, from the mainstream curriculum. See paragraphs 31, 34-38, 53-54. (64.) The LRSD has not substantially complied with its 39 obligation under Section 2.7 of the revised plan to implement the activities which it identified \"to improve and remediate the academic achievement of African-American students , \" See paragraphs 41-55. ( 65.) The LRSD has not provided a predicate to end court jurisdiction with regard to its voluntary undertaking \"to narrow\" the achievement gap between black and white students. IV. Program Evaluation (66.) Three aspects of Section 2.7.1 (quoted above at page 19) are noteworthy. First. In the first sentence and the second sentence, the words \"assess\" and \"assessment\" refer to programs (rather than to assessment of students). Second. The assessment obligation is not limited to the programs described in Part 5 of the revised plan, but instead pertains to those \"implemented pursuant to Section 2.7 11 which as noted is not confined to the programs in Part 5 of the plan. Third. The assessment obligation is annual in nature. ( 67.) Asked during the hearing on November 19, 2001, \"to discuss the difference between an assessment and an evaluation,\" Associate Superintendent Bonnie Lesley began by testifying \"[w] ell, I think part of the confusion has been that we have sometimes used those terms interchangeably \" [Tr., at 242, 13-17] The evidence shows that prior to the hearings on whether or not LRSD had attained unitary status, the LRSD had indicated repeatedly, by its actions, that compliance with Section 2. 7 .1 required the carrying out of program evaluations. Indeed, Dr. Lesley agreed with 40 this proposition, when called as a witness by the Joshua Intervenors. The relevant evidence is summarized in sub-paragraphs (a) to ( e) . (a) LRSD issued a \"Compliance Plan for the LRSD Revised Desegregation and Education Plan\" on June 10, 1999. The text concerning Section 2.7.1. identified relevant \"Board Policies\" to include those on \"Testing Programs\" and \"Program Evaluation.\" The text on \"Procedures (Regulations, Administrative Directives, Handbooks, etc.\") relevant to Section 2.7.1 provided as follows: 1. Program Evaluation Agenda - in progress 2. Title I Restructuring Plan provides for Title I evaluation 3. National Science Foundation Project provides for program evaluation 4. Application for waiver from State or District rules includes an evaluation design 5. In progress: second-year evaluation of Success for All Thus, as seen, every sub-paragraph referred to \"evaluation.\" [See ex 544, at 11-12] (b) In a June 1999 position paper on the PreK-3 literacy program LRSD staff wrote: PreK-3 Literacy Program evaluation. In keeping with the obligations in the Revised Desegregation and Education Plan, the District shall employ with Title I funding a program evaluator, who shall annually report on the level of effectiveness of the innovations in this PreK-3 Literacy Plan. (CX 703, Doc. 1, at 44; emphasis added] See also Tr., 11-19-01, at 278, 19-21 (Dr. Leslie). (c) The material in the March 2000 interim compliance report addressing Section 2.7.1 refers to \"[i]mprovements in the assessment of academic programs.\" [At 51] It also cites, inter 41 alia, the \"Program Evaluation Plan\" [ at 51], a draft policy on \"Curriculum Evaluation\" [ at 52], and \" [ t ]he 1999-2000 program evaluation agenda August 1999.\" [At 53] approved by the Board of Education in (d) The material in the March 2001 compliance report addressing Section 2.7.1 is headed \"Program Evaluation\" -- a title which is repeated at a later point in the discussion. The text (page 148 of the report) includes at least nine other references to \"evaluation.\" (e) During her testimony on August 1, 2001, Dr. Leslie agreed that the District had interpreted 2.7.1, which does not use the word evaluation, as nevertheless raising the topic of program evaluation. [Tr., 8-1-01, at 705, 24 to 707, 12; see also Tr., 8-2-01, at 843, 7-15 (Judge Wright noting that LRSD \"voluntarily undertook .. obligation to have program evaluations of the programs that are designed to enhance African-American achievement\"] (68.) The LRSD took a different tact in seeking to defend its implementation of Section 2.7.1, at the hearing on November 19, 2001. Dr. Lesley cited testing of students and other \"assessment\" activities as satisfying Section 2.7.1. [Tr., 11-19-01, at 242, 18- 22; 243, 6 to 249, 14; see also at 253, 22 to 254, 6 (colloquy between Judge Wright and LRSD counsel) ] 17 The content of paragraphs 1 7 Dr. Lesley distinguished such assessment from a \"program evaluation.\" [Tr., 11-19-01, at 242, 23 to 243, 5] She described a program evaluation as \"more long term\" [at 242, 23] -- a feature congruent with the reference in Section 2.7.1 to an activity \"after each year. \"In contrast, her discussion of \"assessment'' as 42 (a) through (h) supra provide the likely explanation for the LRSD's seeking to defend its performance by discussion of assessment rather than evaluation. The deficiencies in evaluation activities have been such that a finding of substantial compliance with Section 2.7.1 is not warranted. (a) The LRSD Board of Directors did not \"[adopt\"] its Policy IL on \"Evaluation of Instructional Programs\" until March 22, 2001 near the end of year three of plan implementation. [CX 575] As noted, Section 2.7.1 refers to assessments (evaluations) \"after each year.\" The LRSD \"voluntarily undertook obligation.\" [this] (b) The LRSD Planning, Research and Evaluation unit (PRE) presented evaluation documents covering four areas to the Board of Education in August 2000. The documents concerned the PreK-3 literacy program, the implementation of middle schools (including the effectiveness of new curriculum in English language arts and science), the effectiveness of the ESL program, and the national Science Foundation project components. The Board of Education tabled the consideration of these documents because they were incomplete and there were no recommendations. [Tr. , 7-6-01, at 362, 24 to 365, 23; at 389, 18 to 392, 18; at 400, 16 to 401, 22 (Superintendent Carnine)] During the three year period of the plan, the LRSD recognized that it did not have the capability, inter-encompassing teachers \"us[ing] the data that they have available on a daily basis to decide what to do next for one chid, for a group of children or for the whole class\" [at 245, 12-20] was incongruent with the provision in 2.7.1. 43 nally, to prepare the required evaluations. [Tr., 7-6-01, at 400, 2-19 (Dr. Carnine); Tr., 8-2-01, at 710, 3 to 713, 21 (Dr. Lesley); at 829, 20 to 831, 6; Tr., 11-20-01, at 334, 5-14 ; at 495, 16 to 496, 3 (Dr. Lesley)] (c) The versions of the evaluation of the implementation of the PreK-3 Literacy Program prepared during the three-year period were drafts. [CX 577, at 1; Tr., 7-6-01, at 418, 17-23 (Dr. Carnine); Tr., 8-1-01, at 709, 3 to 710, 8 (Dr. Lesley); Tr., 11- 20-0l, at 321, 21 to 322, 22; at 472, 25 to 473, 8 (Dr. Lesley)] (d) The versions of the evaluation of the implementation of the new mathematics and science curricula prepared during the three-year period were drafts. [CX 577, at 1; Tr., 7-6-01, at 398, 1 to 399, 9; at 418, 17-23 (Dr. Carnine); Tr., 8-2-01, at 829, 20 to 831, 6; Tr., 11-20-01, at 473, 25 to 476, 14 (Dr. Lesley)] (e) The version of the evaluation of the implementation of the new middle school program prepared during the three-year period was a draft. [CX 577, at 1] (f) The LRSD did not conduct during the three-year period an evaluation of the implementation of the several policies requiring interventions\\remediation for students performing below par. See para. 49. (g) The LRSD identified the summer school program as an important component of its effort \"to improve and remediate the academic achievement of African-American students\" [Section 2.7]. [March 2000 report, at 47; March 2001 report, at 62, 125-26] In its March 2001 report, LRSD asserted that \"PRE has evaluated\" the 44 \"Summer School [Program].\" [At 148] However, the evaluation of the summer school program for \"Summer School 2000 11 was only in draft form as of April 5, 2001 and July 17, 2001. [CX 721; Tr., 8-1-01, at 645, 12 to 652, 12 (Assoc. Superintendent Mitchell); Tr., 11-20-01, at 357, 1 to 358, 8] (h) In the March 15, 2001 report the LRSD asserted that \"PRE has evaluated ... [11] programs .... 11 [At 148] This assertion is misleading. [aa] The \"Extended Years Report\" existed in draft form as of July 13, 2001; there is a version of the report dated September 28, 2001. [CX 720] [bb] The LRSD presented only drafts of the \"Summer School\" report. [CX 721] [cc] There is an evaluation of the \"Hippy Program\" dated July 1999. [CX 722] [ dd J The report on the \"Charter School\" is dated June 25, 2001; it was written by an external consultant. [CX 723] [ee] The report on \"Campus Leadership Teams\" contains survey data dated May 11, 2001 and lists of participants, without further discussion. [CX 724] [ff] There is an evaluation of the ESL program dated October 30, 2000. [CX 725] [gg] There is a draft evaluation on the \"Lyceum Scholars Program at Philander Smith College\" dated September 22, 2000. [CX 726] 45 [hh] With regard to the \"Southwest Middle School's SEDL Program,\" there is a request for data from an external source and some data, not an evaluation. [CX 727; Tr., 11-20-01, at 361, 17 to 362, 5] [ii] With regard to \"Onward to Excellence (Watson Elementary),\" there is a collection of information provided by the \"Site Facilitator\" on November 1, 2001, not an evaluation. [CX 728; Tr., 11-20-01, at 362, 7-17] [ j j] With regard to \"Collaborative Action Team (CAT),\" there is a collection of survey data and some comments, of anonymous authorship, dated November 6, 2001. [CX 729; Tr., 11-20-01, at 363, 10-24] [kk] Regarding \"Vital Link,\" there is a brief, undated evaluation of anonymous authorship. [CX 730] (67.) The LRSD did not substantially comply with the program evaluation obligation which it voluntarily assumed by virtue of Section 2. 7 .1. The LRSD did not evaluate the academic programs which it implemented pursuant to Section 2.7 after each year to determine their effectiveness in improving African-American achievement and to use the results to make program changes. Indeed, it has not fulfilled this agreement after three years. In fact, the LRSD tacitly acknowledged its failure by seeking to recast the nature of its obligation during the hearings. 46 Argument A. Introduction and the Standard for Substantial Compliance In this matter, the court is called upon to \"[apply] the terms of a contract between [ two of] the parties ... \"[LRSD v. PCSSD, li, 83 F.3d 1013, 1017 (8th Cir. 1996)] -- the LRSD and the Joshua Intervenors. \"Because this case has been settled, the settlement agreement becomes, in a sense, a particularization of federal law applicable to these parties.\" Knight v. Pulaski County Special School District, 112 F.3d 953, 955 (8th Cir. 1997). Put another way, \"the terms of the settlement agreement became the law of the case.\" Little Rock School District v. Pulaskui County Special School District, No. 96-2047, Slip Opinion, Dec. 15, 1997, at 6. In sum, this court is called upon to apply the parties ' agreement in the form of the revised plan, which left in place among other things \"The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989.\" [Section l(a.)J The revised plan identifies the standards which this court is to apply to determine, for example, whether the LRSD fulfilled its obligations regarding student discipline and program evaluation, and whether it is entitled to a \"release from court supervision.\" That other systems face less onerous criteriaa is irrelevant. LRSD is held to the obligations which it \"voluntarily undertook\" [see Tr., 8-2-01, at 843, 7-15 (Judge Wright referring to \"obligation to have program evaluations\"); they form \"the law of [this] case.\" 1 8 See LRSD Me.-Brief, at 18-19, 28. 47 Construed as an entirety [seen. 1 at 1, supra], the terms of the agreement support the construction that the court's jurisdiction continues as to an area in which a party meets its burden of proof of showing \"that LRSD has [not] substantially complied with its obligations set forth in [the] Revised Plan.\" [Section 11] In this light, a principal task for this court is to define the term \"[substantial compliance].\" The opinion in Cody v. Hillard, 139 F.3d 1197 (8th Cir. 1998) provides guidance on this topic. 19 There, the district court had dissolved a consent decree, merely asserting in a conclusory manner that \"the defendants have conscientiously and in good faith complied substantially with its terms.\" [At 1199] In explaining the inadequacy of the district court's terse ruling, the appellate court wrote, in part: The record indicates that there have been failures in the past to comply with the decree and supplemental orders, and that there are still at least some violations of the decree. The district judge's order does not give us enough information to determine whether he ignored the evidence of past and present violations or whether he considered any violations inconsequential in the context of substantial compliance. If the conditions Powitz complained of constitute violations of the consent decree, the district court must exercise its discretion in determining whether those violations were serious enough to constitute substantial noncompliance and to cast doubt on defendants' future compliance with the Constitution. [At 1199; emphasis added] The Cody court focuses on two related matter. These are, first, whether any violations are \"inconsequential\" in the light of 19 Cody is, however, largely distinguishable; \"[t]he consent decree did not state the time of its duration.\" See 139 F.3d at 1198. 48 the parties' overall performance and, second, whether the particular violations, \"serious\" matters. given their subject matter, involve The Court of Appeals for the First Circuit twice addressed the meaning of \"substantial compliance\" in the context of appeals from judgments of civil contempt. See Fortin v. Com'r of Mass. Dept. of Public Welfare, 692 F.2d 790 (1982) and Morales-Feliciano v. Parole Bd. of Commonwealth of Puerto Rico, 887 F.2d 1 (1989) (Judge Breyer). These decisions are also helpful. In Fortin, the court wrote [692 F.2d at 795]: Finally, no particular percentage of compliance can be a safe-harbor figure, transferable .from one context to another. Like 'reasonableness,' ... 'substantiality' must depend on the circumstances of each case, including the nature of the interest at stake and the degree to which non-compliance affects that interest. In the present case, the interest at stake - entitlement to subsistence-level benefits - is great . , making the consequences of failure to comply quite serious. The district court properly weighed the seriousness of the harm . in considering the substantiality of the Department's compliance .... [citations omitted] The court also considered the duration of noncompliance. Id. at 796. The Morales-Feliciano court followed the Fortin standard. See 887 F.2d at 4-5. Intervenors next apply these standards to the facts. The argument shows that all of the shortcomings cited in the Intervenors' factual presentation involve substantial noncompliance. Because all areas of noncompliance impinge on and harm the education of youth, an interest of great importance [see Fortin and Morales-Feliciano, supra J, Intervenors address that matter once at the conclusion of the argument. 49 B. Student Discipline In this case involving racial discrimination in public education, the person responsible for compliance with the discipline sections of the plan testified: \"I can't say that we are looking at it based on race.\" See para. 18. Dr. Watson's description of inaction concerning discipline was entirely consistent with her admission. See paras. 12-17. The violation of Section 2.5 was \"serious.\" Cody, supra. The system argues that the revised plan \"did not require the LRSD to reduce the discipline disparity.\" [At 28] However, it did require actions \"designed to ensure that there is no racial discrimination with regard to student discipline . . \" [Sec. 2.5; emphasis added] Compliance would necessarily require scrutiny of disparity to determine whether it originated in discrimination in any schools. In any event, the LRSD plainly assumed this obligation in Section 2.12.2. See para. 26. Lastly, there are also obvious and serious violations of Section 2.1 (good faith efforts) and Part 6 (compliance program). See paras. 27-28. The LRSD merely accepted disparate discipline as a fact of life. That tact may be open to other school systems. See LRSD Mem. -Brief, at 28. However, the LRSD pledged to implement the revised plan in good faith. The plan became, therefore, \"the law of this case.\" The (behavior failure to implement the modification plans) provisions can not of be Section 2. 5. 4 dismissed as \"inconsequential.\" The March 2001 report listed 4,274 suspensions 50 of black pupils in 1999-2000. [At 24] There was a need for such plans; the LRSD merely gave \"lip service\" to the concept. Para. 25. C. Improving and Remediating the Achievement of Black Students The LRSD pledged not only to design, but also to implement actions \"to improve and remediate the academic achievement of African-American students.\" [Section 2.7] \"[T]he circumstances of [this] case ... \"[Fortin.supra] highlight the centrality of this pledge. The evidence shows that at the time that the parties drafted the revised plan and its implementation began, LRSD polices and practices isolated black students, disproportionately, from the curriculum content LRSD identified as important for all students. This practice included the operation of the Title I program -- a mode of operation diametrically opposed to the requirements of federal law. See paras. 31-38, 53. The LRSD determined, essentially, that it needed to replace its curriculum and that this step would fulfil its Section 2.7 obligation to the plaintiff class. Intervenors factual presentation shows that implementation fell short in areas deemed significant by LRSD (training of teachers for the new literacy curriculum, implementation of the new math-science and social studies curricula, provision of interventions to students [mostly black youth J not performing well, and moni taring of classrooms. See paras. 32, 43-51. Indeed, State Benchmark Examination results in April 2001 revealed that the vast majority of black pupils in grades 4 and 8 continued to show signs of isolation from the curriculum content deemed essential by the State and the LRSD in 51 math and language arts. See paras. 52-55. These shortcomings in compliance obviously involved \"serious\" and not \"inconsequential\" matters. Cody, supra. D. Racial Disparities in Achievement Former Superintendent Carnine, Associate Superintendent Lesley, and Judge Wright recognized the continuing requirement of an effort to narrow the achievement gap between black and white students. See paragraph 59. LRSD did not argue during the hearing that it could not narrow the achievement gap. It argued that its Section 2.7 activities would do so -- and that it was doing so in the area of early grade literacy. See Tr., 7-6-01, at 375, 14 to 379, 18 (Dr. Carnine); see para. 62. The LRSD did not develop any particular program designed to remedy achievement disparity between black and white pupils [see para. 60]; there have been, as noted, serious shortcomings in its implementation of the strategies to overhaul the educational program, K-12, which were to improve black achievement. The results of State benchmark and SAT 9 testing provide evidence that the educations of countless African-American students in the system have been tainted by isolation from the mainstream curriculum. See paras. 53-54, 61. The LRSD had promised in the prior plan to deal with achievement disparity. [At 1. para. BJ Manifestly, a curriculum isolating black students from core content was not the way to make progress in this sphere. The failures to address the achievement gap, as such, and to implement major parts of the reforms encompassed in Section 2.7 are 52 \"serious\" shortcomings. E. Program Evaluation The LRSD elected voluntarily to make a major commitment which it understood to involve program evaluation until such time as it determined that it could not show substantial compliance with Section 2.7.1, as so construed. Para. 67. The commitment encompasses not only evaluating the programs designed to benefit black students' achievement \"after each year,\" but also making changes if programs prove to be ineffective. Se    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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DEFENDANTS NOTICE OF FILING In accordance with the Court's Order of March 1, 2002, the Arkansas Department of Education files the following six (6) agreements: 1. Stipulation for Proposed Order on Voluntary Majority to Minority 2. Transfers dated August 26, 1986; Stipulation for Recommendations Regarding Magnet Schools dated February 16, 1987; 3. Pulaski County School Desegregation Case Settlement Agreement dated March, 1989; 4. The \"Allen Letter\" dated May 31, 1989; 5. Memorandum of Understanding between the Little Rock School District and the State of Arkansas; and 6. Agreement between the Little Rock School District and the State of Arkansas dated March 19, 2001. Respectfully Submitted, MARK.PRYOR Attorney General #94127 Assistant Attorney Ge al 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-3643 Attorney for Arkansas Department of Education CERTIFICATE OF SERVICE I, Mark A. Hagemeier, certify that on April 1, 2002, I caused a copy of the foregoing document to be served by U.S. mail, postage prepaid, on the following person(s) at the address(es) indicated: M. SamuelJones,ill Wright, Lindsey \u0026amp; Jennings 2000 NationsBank Bldg. 200 W. Capitol Little Rock, AR 72201 John W. Walker John Walker, P.A. 1723 Broadway Little Rock, AR 72201 Richard Roachell P.O. Box 17388 Little Rock, AR 72222-7388 Christopher Heller Friday, Eldredge \u0026amp; Clark 2000 Regions Center 400 W. Capitol Little Rock, AR 72201-3493 Stephen W. Jones Jack, Lyon \u0026amp; Jones 3400 TCBY Tower 425 W. Capitol Little Rock, AR 72201 Ann Marshall One Union National Plaza 124 West Capitol, Suite 1895 Little Rock, AR 72201 -- ( IN THE UNIT~D STATES DISTRICT COURT EASTERN DiSTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT MRS. LORENE JOSHUA, ET AL. vs. NO. LR-C-82-866 PULASKI COUNTY SPECIAL, SCHOOL DISTRICT NO. 1, ET AL. STIPULATION FOR PROPOSED ORDER ON VOLUNTARY MAJORITY TO MINORITY TRANSFERS PLAINTIFF INTERVENORS DEFENDANTS Plaintiff Little Rock School District (\"LRSD\"), and defend~nts Pulaski County Special School District (\"PCSSD\"), North Little Rock School District (\"NLRSD\"), and Arkansas State Board of Education (\"State Board\"), being in agreement on the voluntary majority-to-minority transfers, submit the following stipulations for the proposed order: 1. Beginning in the 1987-88 school year and continuing thereafter, LRSD, PCSSD and NLRSD will permit and encourage voluntary majority-to-minority interdistrict transfers: The three districts will cooperate in the development of programs to acquaint parents, guardians and students with interdistrict opportunities. The implementation of majority-to-minority transfer provisions is contingent upon the implementation of all other provisions of the remedy ordered by the Court. 2. Eligibility: ADD-1 a. Black students who are members of the racial majority at a school in any participating distiict which district is 50 percent or more black in its enrollment shall be eligible to transfer voluntarily to a school and district in any other participating district in which school and district they would be in the racial minority. b. White students who are members of the racial majority at a school in a participating district which district is more than 50% white in its enrollment shall be eligible to transfer voluntarily to a school and district in any other participating district in which they would be in the racial minority. c. Prior to the transfer of any student, the home district shall issue a statement that the transferring student is in good standing. If the student is not in good standing, the student may be permitted to transfer on a provisional basis. 3. Students wishing to transfer shall file applications with their home districts. Applications must be filed before May 1 of the preceding school year and a student may not transfer more than once in any school year. The home district will process all applications and forward copies to the host districts. The home district will furnish its complete file on each student with his/her application. 2 ADD-2 le I I I I II ' f  ;~ ;r_ . ' ~,.-, \\~ ::f; d ._ 4. Transfer assignments will be made subject to av lability of space in schools and grade levels, and the host districts' ability to comply with state standards. 5. The host district shall honor the placement for the students as certified by the home district, which shall be communicated to the parent or guardian prior to transfer. during the first semester, testing, performance, remedial efforts, and consultation indicate that an adjustment of placement should be made, it shall be made after the first If,, semester in consultation with the student's parent or guardian. 6. The commitment to accept a student shall be for the duration of the student's voluntary participation. Once a student exercises his or her right to participate, the student will continue in the initially selected school for at least one full school year or until the student graduates or affirmatively withdraws from participation as herein set out. Students will not have to transfer each year or exercise a tran s fer choice to remain in the host district. Students shall be encouraged to continue to participate a~ their initial school of choice. It is expected that the student will follow the pattern of assigned schools for the resident students in the school in which the transfer student first enrolls. 7. Students who have elected to transfer shall remain students of the host district until they choose to return to the district where they reside. 3 ADD-3 I I I 8. Host districts shall not have the authority to remand tr sfer students to the home district. Host districts shall have the authority to discipline, suspend or expel a transfer student using the same due process procedures applicable to resident students. 9. Once admitted, transfer students will be expected to meet the same general standards, academic and other, as applied to students of the host district. 10. Information about each district's academic and disciplinary policies and procedures will be made available to prospective transfer students on request. This should include information on pupil-teacher ratios, promotion and retention, counseling assistance, grading, student code of conduct, disciplinary action, and suspension and expulsion. 11. The host district shall respond to the educational needs of students without regard to their status as a transfer or resident student. Transfer students shall be eligible and encouraged to participate in all school programs funded and sponsored by the host district (academic, athletic, extra-cuiricular and other) and shall not suffer any disability or ineligibility because they are voluntary interdistrict transfer students. Participation in after-school activities will be facilitated by the provision where needed of extra-curricular buses or other forms of transportation which will be available to all such transfer students, the cost of which shall be borne by the State as provided in paragraph 12. 4 ADD-4 I . . '- - I I I I I I \u0026amp;: - - I -~ ~ ~ ' -. ~ 12. The State Board shall pay the full cost of tl 1sporting students opting for interdistrict transfers. However, the State Board shall have the option of (1) ?aying the school districts for transporting the students or (2) contracting for the services or (3) transporting the students with a state operated system. 13. The State Board shall pay the home and host districts ih accordance with the following procedures: a. Each year school di~tricts shall calculate and certify to the State Board of Education their cost per student in regular schools (grades K-12) including all add-ons for special education, TAG, vocational education and other purposes. The cost per student shall include all costs for instruction and support services minus student transportation, food servic8, and restricted federal program costs . (To the extent that the host district does not receive pro-rata increases in restricted federal program costs by hosting transfer students who are eligible to participate in federal programs, the cost per student shall be increased on a pro-rata basis for such transfer students.) The State shall pay the costs for full-time equivalent students who have been transferred to the host district. Payments made for the current year shall be based on costs for the 5 ADD-5 I - , previous year. The host district shall report each transfer student on forms as required by the State Department of Education. b. Each host district shall esti~ate the full-ti~e equivalent of transfer students and transmit such estimate, along with the names of the students, to C. the State in September of each year when payment begins. A correction will be made in January of each year. Payments shall be made by the State monthly through forward funding to each district based upon the September estimate as corrected . . The .students transferred to the host district shall not be counted in the number used to calculate regular state aid for the 3istrict. Each home district shall receive from the State for each student who voluntarily transfers fr om his/her home district to a host district one-half of the State aid (table rate) it would have received had the student remained in his/her home district. Information about these students shall be reported on forms as required by the State Department of Education and shall be reported at the same time as the reports are made by the host district. (he students transferred from the home district shall not be counted in the n_u_mber _u_s~d to calculate regular 6 ADD-6 I d. state aid for the home district. All transfers of handicapped students shall be contingent on the availability of appropriate prcg~ams and rescurces, as identified in the IEP, at the host sch0cl. The provisions contained herein do not apply to I magnet schools and programs. I 14. All parties to this stipulation recognize that the present racial balance of the North Little Rock School District approximates that of the entire county and they are desirous of not upsetting that balance through the operation of the Majority to Minority Transfer Program. The parties further recognize that any court approved student assignment plan by any party could be compromised if the Majority to Minority Transfe~ Program caused significant changes in student assignment plans. To avoid this result, all parties agree that any party may choose to include or not include said Majority to Minority transfer students for purposes of student assignment under any court order. Further, all parties recognize that substantial participation in the Majority to Minority program could have the result of creating technical departures from targeted student ratios at one or more schools. All parties agree that any such departure resulting from the lawful operation of the Majority to Minority program shall not give rise to a claim or contention that such departure from targeted ratios constitute 7 ADD-7 ;, violations of any law or regulation and, specifically, shall ne : be urged or suggested as grounds for liability in this or similar litigation. Additionally, any such resulting departu~es from targeted ratios shall not require the districts affected to reconstitute or recompose the student body of any affected school. Agreed this 26th day of August, 1986. PULASKI COUNTY SPECIAL SCHOOL DISTRICT LITTLE ROCK SCHOOL DISTRICT NOR ARKANSAS STATE BOARD OF DIS EDUCATION (l~ \u0026lt;~ 2258L 8 370 659 FEDERAL SUPPLEMENT prised 28o/o of the membership in extracu ricular activities. PCSSD plan, Appen G. An affirmative recruitment plan will e implemented to remedy underreprese tation in activities where it occurs. PC SD Plan, Appendix H. The foregoing proposals of the desegregation plan represent not nly a turn in the right direction, but also significant progress toward achieving unitary school district. While much rem ns to be done, much has been accompli ed. Accordingly, this portion of the PC SD desegregation plan is hereby appro d. School \u0026amp; Program Carver-Basic Skills Math-Science Williams-Basic Skills Booker-Arts Gibbs-Foreign Langu ge/ International udies Mann-Math-Sciences Arts Parkview-Arts-Perf rming Arts Total The curriculum emphasize the magn theme and all magnet students must f ly participate in magnet courses. As we as the magnet theme, all magnet school will have strong academically- oriented curricula. New magnets r expansion of magnets already existing may be provided for in subsequent sch ol years beginning 1988-89 under the pro sions of the Order of September 3, 19 . Any party may present applications or a magnet school or program not la r than the beginning of each school year preceeding the proposed year of implem tation. The Committee's decision and recommendation shall be submitted to the parties no later than N ovember 15. The MRC shall make its recommendat  n to the Court not later than De- 15. IMPLEMENTATION parties propose that the District Co rt order the implementation of the six (6) aforementioned magnet schools for the 1 7-1988 school year. The host district all provide to the MRC and to the parties EXHIBIT A STIPULATION FOR RECOMMENDATIONS REGARDING MAGNET SCHOOLS The undersigned parties have agreed to make the following described recommendation to the Magnet Review Committee for its consideration in formulating its recommendation regarding magnet schools. LOCATIONS AND THEMES The parties have agreed to recommend the following magnet school locations and programs: Grade K-6 K-6 K-6 K-6 7-9 10-12 Target Enrollment 475 530 720 348 975 1150 4198 its implementation timetable at the time a magnet proposal is submitted to the Court. FINANCING The parties agree to the financing formulas proposed by the Magnet Review Committee at the hearing held on January 29 and 30, 1987. These formulas require the State to pay one-half () of the actual costs of the construction or renovation of magnet schools as well as the customary state aid. and one-half () the cost of educating the magnet students attending those schools. It is understood that any district which does not provide a student to fill an allocated seat, and said seat is not occupied by any other student, will be required to pay to the host district as its full liability for said unfilled seat the per child cost of the host district's debt service payment, both principal and interest, for the construction or renovation of the schools in the magnet program. The host district will provide separate accounting and budgeting information regarding the magnet program to the Magnet Review Committee for review. ~ ' =- EX .H l B J.. t, ,IT A : RECOMMENDA- 1ING MAGNET OLS rties have agreed to scribed recommendaiview Committee for rmulating its recommagnet schools. ND THEMES $reed to recommend school locations and ;et Enrollment 475 530 720 348 975 1150 4198 1 - at the time a bmitted to the Court. TCING , the financing formuYiagnet Review Com; held on January 29 formulas require the :) of the actual costs renovation of magnet ~ customary state aid cost of educating the mding those schools. .t any district which 1dent to fill an allocat- 1t is not occupied by ill be required to pay .s its full liability for per child cost of the .ervice payment, both ;, for the construction schools in the magnet district will provide and budgeting infor e A net program to ~ ttee for review. LITILE ROCK SCH. DIST. v. PULASKI CO. SP. SCH. DIST. 371 Cite as 659 F.Supp. 363 (E.D.Ark. 1987) INTERDISTRICT served for the shadow area in the host TRANSPORTATION PLAN district. The remaining seventy-five per The State Board of Education remains centum (75%) of the seats shall be allocated committed to underwriting the entire actu- to each of the three districts in proportion al cost of transporting magnet and M-to-M to that district's percentage of county-wide transfer students, which includes the cost students at each school level (elementary, of transporting these students for extra- junior high, or senior high). At the elemencurricular activities. The districts agree tary level each district shall allocate its that transportation of magnet/M-to-M stu- seats in proportion to the racial ratio dents should be performed utilizing mea- present in such district at the elementary sures which are most cost efficient. The level. At the secondary level, each district interdistrict transportation plan shall not shall allocate ail its seats on the basis of be used as a means to seek compensation 50% black, 50% non-black. However, the for additional transportation vehicles un- total number of seats assigned to the less such vehicles are directly necessary North Little Rock School District shall not because of the interdistrict transportation exceed 475 seats with no more than 100 plan. New full -sized school buses pur- seats being allocated to the North Little chased in order to transport magnet/M- Rock School District from Parkview. to-M students will be added to the total It is understood that seat allocations will transportation fleet costs and applied on a not be made by district to a particular pro rata basis to the transportation of mag- school, but only by elementary, junior high net/M-to-M students. The cost of any oth- and senior high level. Therefore, a particuer vehicles purchased to transport isolated Jar district will be permitted to use its magnet/M-to-M students will be prorated allocated seats in accordance with the deaccording to their actual use in transport- sires of its students subject to space limitaing magnet/M-to-M students. Each dis- tions in particular magnet schools and the trict agrees to separately account for the maintenance of a 50-50 racial balance. If costs of transporting magnet/M-to-M stu- there is oversubscription among the disdents and to make those records fully avail- tricts by race, grade or school each district able to representatives of the State Depart- may make a recommendation to the MRC ment of Education at any reasonable time. for its approval regarding actual distribu- The parties agree that the Interdistrict tion of seats. The three districts agree Transportation Plan for both magnet that each district will establish an open schools and M-to-M transfers will be admin- enrollment policy for magnet schools and istered by an Interdistrict Transportation will be permitted to determine how children Authority (ITA). The ITA shall be com- will be selected for the magnet seats alloposed of the Transportation Director or cated to each district pursuant to that poliother designee of each district and a repre- cy. This provision shall not prohibit the sentative of the State. The parties agree establishment of geographic preference arthat any conflict may be determined by a eas where appropriate. U.S. Magistrate acting as a Special Master In the event there are unused seats by for the District Court. any district then persons on waiting lists to SEAT ALLOCATION All magnet schools shall have a student population which is fifty percent (50%) black and fifty percent (50%) non-black. The parties agree that for the 1987-88 school year the magnet school seats shall be allocated according to the following formula: Twenty-five per centum (25%) of the capacity of a magnet school shall be re-attend  from the other districts shall be permitted to attend before any seat is left vacant. No student attending a magnet school will be considered as an M-to-M transfer student for incentive payment purposes. TARGETED RATIOS The parties have previously submitted to the Court a proposed stipulation for M-to-M i. 372 659 FEDERAL SUPPLEMENT transfers which in part recognizes that if M-to-M transfers occur, ratios targeted by any of the districts for particular schools might be affected depending upon the locations from which M-to-M transfers occur. The parties in that stipulation agreed that the first priority should be a successful M-to-M transfer program and that if it did affect targeted ratios, such departures would not be regarded or urged as constitutional violations or departures from desegregation plans. The parties further recognize that a successful operation of the magnet school program could potentially have the same or similar effects upon targeted ratios. The parties therefore recommend that any magnet transfers not be counted as a departure from a desegregation plan or urged as a co_nstitutional violation. LITTLE ROCK MAGNET GRANT The parties agree and recommend that, should the Little Rock District now or in the future prove successful in obtaining grants for the operation of magnet schools, any such monies shall be applied off the top to the obligations of all parties. The parties further agree and recommend to the Court that they cooperate in the development of an application for any future magnet grants. ADMINISTRATION The daily administration and operation of the magnet schools shall be the responsibility of the host district. The host district shall designate a person who shall have principal responsibility for overseeing the development and implementation of its magnet program. STUDENT RECRUITMENT The parties agree that the Magnet Re-  view Committee shall establish a Magnet/ M-to-M Educational Team (MET). The major responsibilities of the MET shall include community education and information dissemination of educational opportunities in the magnet programs and recruitment for both magnets and M to M transfers. It shall report to the MRC. The MET shall be composed of the person from each school district and the State responsible for desegregation planning, and two additional persons selected by each of the following parties: Joshua Intervenors Little Rock School District North Little Rock School District Pulaski County Special School District State of Arkansas These additional representatives of the MET shall not be employees or officials of any of the districts or the State. February 16, 1987 PCSSD Administrative Offices The Magnet Review Committee (MRC) endorses the foregoing stipulations. Pulaski County Special School District Isl ______G_ e_n_e_J_o_n_es ______ North Little Rock School District Isl _____J_ a_m_e_s_R_._S_m_it_h_ _____ Little Rock School District Isl ____ J_e_s_se_L_._R_a_n_c_if_e_r ___ _ Arkansas Department of Education Isl ____ M_a_r_c1_a_A_. H_a_r_d_in_g ____ _ Arkansas Department of Education Morris F. Holmes Isl ---------------- The EXHIBIT B MAGNET REVIEW COMMITIE REPORT TO THE COURT Eastern District of Ar ansas P.O. Box 3683 Little Rock, Ark sas 72203 Dear Judge W ods: The Ma t Review Committee submits for your onsideration the attached report includ g nine separate recommendations con ming magnet schools in Pulaski unty. ----------~---  --- -- ---- PULASKI COUNTY SCHOOL DESEGREGATION CASE SETTLEMENT AGREEMENT March, 1989 (As Revised September 28, 1989) ..  EXHIBIT 1 3 i  I PULASKI COUNTY SCHOOL DESEGREGATION CASE SETTLEMENT AGREEMENT r. II. Introduction ..... General Provisions. CONTENTS Magnet Funding Calculation Magnet Surplus Credit ...... . A. B. c. D. E. F. Magnet Operational Charge. . . ... G. H. I. J. K. L. M. N. o. P. Restrictions on Funding Magnet Schools. Continuation of Existing Funding .... Compensatory Education, Early Childhood Education and other Statewide Programs .. . Conditions to Settlement. . .. . Act 34 Exemption. . . . . . .. . Staff Development ........ . Recognition of Autonomy ...... . District Budgets . . . . . Prohibition of Punitive Action ..... . Rededicated Millages .... . Limit of Liability ...... . Majority to Minority Provisions. Consent Order. . . . . III. State's Role in the Desegregation Process . A. Monitoring Compensatory Education. . . . . . B. Statement of Support for the Plans . . . . . c. Petition for Election. . . . . . . D. Statutes and Regulations Affecting Desegregation. . . . . . . . . . . E. Elimination of the Pulaski County Education Service Cooperative. . . . . . . . . . F. Commitment to Princit,les . . . . . . . . G. Remediation of Disparities in Academic Achievement. . . . . . . . . . . H. Test Validation. . . . . . . . . . . . . . . I. In-Service Training. . . . . . . . . . . J. Recruitment of Minority Teachers . K. Financial Assistance to Minority Teacher Candidates . . . . . . . . ... L. Minority Recruitment for ADE Staff . . . . . M. School Construction. . . . . . ii . . . . . . 1 2 2 2 3 4 4 6 6 7 8 9 10 10 10 11 11 12 13 13 13 14 14 14 15 15 16 16 16 17 17 18 IV. Dismissal of Litigation .. . . . - . . . . 18 A. Dismissal of the State with Prejudice and Release.~. . . . . . . . . . . . . . . . 18 B. Agreement Regarding Litigation Among Joshua and the Districts. . . ......... 19 C. Reserved Issue . . . . . . 19 V. VI. Attorneys' Fees ... The LRSD Settlement. VII. VIII. A. B. The A. B. c. D. The A. B. c. D. Payment Schedule and Terms . Loan Provisions. PCSSD Settlement. . . . . Financial Settlement . . . . . 1. Magnet Payments . . . . . 2. Other Payments. . Staff Development. . . . . . . Food Services. . . . . . Housing. . . . . NLRSD Settlement. Magnet Payments. . .... Compensatory Education Payments .. Additional Payments ....... . Description of Additional Compensatory Education Programs. IX. Execution ....... . ATTACHMENTS Attachment A Release of Claims - State Attachment B Release of Claims - LRSD Attachment C Release of Claims'- PCSSD Attachment D Release of Claims - NLRSD iii 20 22 22 24 27 27 28 28 29 30 30 30 30 31 31 36 36 I. Introduction The Little Rock School District ( \"LRSD\") Desegregation Plan (January 31, 1989), the Pulaski County Special School District No. 1 ( \"PCSSD\") Permanent Desegregation Plan (October 3, 1988, as supplemented February 15, 1989), the North Little Rock School District (\"NLRSD\") Desegregation Plan of March and October, 19 8 6 ( as amended or modified through February 15, 1989 or by operation of this settlement agreement) and the Interdistrict Desegregation Plan (February 15, 19 89) ( the \"Plans\") hold excellent promise for achieving unitary school systems in these three districts which are free from the vestiges of racial discrimination. Continued litigation regarding funding and other issues may make more difficult and further delay effective implementation of the constitutional obligations of the State of Arkansas and the three Pulaski County school districts (the \"Districts\"). This settlement of the issues concerning the Districts, the Joshua Intervenors (\"Joshua\"), the Knight Intervenors (\"Knight\") and the State of Arkansas in Li t'tle Rock School District vs. Pulaski County Special School District, et al, No. LR-C-82-866 and cases consolidated therein and their predecessors (\"this Litigation\")  is in the best interest of the students, patrons and staffs of the Districts and the people of the State. 1 - The superintendents of the Districts support the settlement and it has_ received the unanimous approval of their respective boards of directors. The business community as represented by the Greater Little Rock Chamber of Commerce also supports the settlement and the Plans. That group has pledged the strong support of its membership to help the Districts achieve many of the goals of the Plans. The black plaintiff intervenors (\"Joshua\"), the NAACP Legal Defense and Educational Fund, Inc., the Little Rock and North Little Rock chapters of the NAACP and the Greater Little Rock Christian Ministerial Alliance pledge their support to the Plans and this settlement. The settlement is also supported by Knight (LRCTA, PACT, NLRCTA and the AEA). The Arkansas State Board of Education, the Arkansas Department of Education (\"ADE\") and the Governor of Arkansas support the settlement. II. General Provisions A. Magnet Fund~ng Calculation . Each District's magnet students will be included in the calculation of that District's table rate in determining State aid to be paid under the MFPA formula or any future funding formula. B. Magnet Surplus Credit Any cash surplus remaining in the magnet school fund for a given fiscal year after all expenses and receivables for that fiscal year have been accounted for (including a payment to the host District for administrative costs) will be returned to Districts and ADE as follows: (1) NLRSD will receive the difference between its table rate and $1,550 multiplied by its average daily membership in the magnet schools for the fiscal year to the extent surplus funds are available: (2) If additional surplus funds exist following the payment to NLRSD, PCSSD will receive the difference between its table rate and $1,550 multiplied by its average daily membership in the magnet schools for the fiscal year, to the extent surplus funds are available: (3) If additional surplus funds exist following the payments to NLRSD and PCS SD, 2 the LRSD will receive the difference between its table rate and $1,550 multiplied by its average daily membership in the magnet schools for the fiscal year, to the extent surplus funds are available. (4) If additional surplus funds remain following the payments to NLRSD, PCSSD and LRSD, the ADE will be refunded its magnet operation payments to the extent such funds are available. This  provision will remain in effect for seven years beginning with the 1988-89 school year. The payment to the host District for administration of the magnet schools for the 1988-89 school year will be 3.09% of the magnet school fund. In future years, the payment to the host District for the administration of magnet schools will be the same percentage of the magnet fund as the state-determined percentage of the host District's budget attributable to administrative costs. C. Magnet Operational Charge The current per pupil operational charge for magnet students ($3,100) will remain in force until changed by the Magnet Review Cammi ttee, or in the event the Magnet Review Committee is restructured or eliminated, then by agreement of the parties, subject to the review of the district court in any event. 3 The parties will review the operational charge on an annual basis but will not increase the charge solely for the purpose of creating a surplus. Calculations in paragraphs II.B., VII.A.I. and VIII.A assume a $3,100 operational charge. D. Restrictions on Fundina Magnet Schools The State will have no further obligation to contribute any additional funds to magnet  schools other than under paragraph II E. below. The Districts obligation to contribute funds to magnet schools shall be limited to their paying their portion of the costs of the six existing magnet schools pursuant to the Court's order of February 27, 1987. Any reference to the six existing magnet schools in this settlement shall mean, for funding purposes, up to their present seating capacities. Those seating capacities are as follows: Carver Williams Gibbs Booker Mann Parkview 613 515 351 660 935 991 E. Continuation of Existing Funding In addition to any payment described elsewhere in this agreement, the State will continue to pay the following costs: 4 (1) The State's portion of magnet school operational costs for the six existing magnet schools (Gibbs, Booker, Carver, Parkview, Mann and Williams) using the formula employed by the State during the 1987-88 school year modified by the inclusion of the number of students from each District attending magnet schools in the calculation of that District's table rate for distribution of MFPA; (2) Majority to minority student transfer incentive payments to the host and home Districts as described in the August 26, 1986 M to M stipulation; (3) The State's share of Magnet Review Committee allocated; expenses as currently (4) Transportation to the six existing (5) magnet schools; Transportation of majority to minority transfer students between the Districts as described in the August 26, 1986 M to M stipulation; and (6) The State's share of any and all programs for which the Districts now receive State funding. 5 ., The funds paid by _the State under this agreement are not intende~ to supplant any existing or future funding which is ordinarily the responsibility of the State of Arkansas. F. Comoensatory Education, Early Childhood Education and other Statewide Programs The settlement payments described in this agreement are exclusive of any funds for compensatory education, early childhood development or other programs that may otherwise be due LRSD (or any successor district or districts to which students residing in territory now within LRSD may be assigned or for the benefit of such students if the State or any other entity becomes responsible for their education), PCSSD or NLRSD under present and future school assistance programs established or administered by the State. The State will not exclude the Districts from any compensatory education, early childhood development, or other funding programs or discriminate against them in the development of such programs or distribution of funds under any funding programs. G. Conditions to Settlement This settlement is conditioned upon approval by the Districts' boards of directors (already done) and the State Board of Education (already done), the certification of the classes and class representatives by the court (already done), the 6 . ' execution of the releases attached hereto as Attachments A, B, C and D, the dismissal of the State from this Litigation with prejudice consistent with the terms of Attachment A, the approval of the terms of the settlement by the court and the enactment of legislation prior to August 15, 1989 either (1) making provision for the funding of the Settlement or (2) authorizing the Arkansas State Board of Education (State Board) to enter into a consent order which directs the State Board to make the payments which would fund the obligations of the State under the Settlement (already done) . As used in this agreement, \"final approval\" means after all these conditions have been satisfied. If final approval of this settlement agreement is not obtained, no statement in the agreement may be used for or against any party as an admission of liability intent. H. Act 34 Exemption No sums received by t.h e Districts pursuant to this settlement shall be regarded as included within the definitions of total local resources, net local resources, gross current revenue, or miscellaneous funds pursuant to Ark. Code Ann. Section 6-20-301, et seq. or pursuant to any amendments to those sections which may hereinafter be enacted. 7 .. All funds received by the Districts pursuant to this agreement, . including any interest or earnings thereon, will be exempt from Sections 8 and 11 of Act 34 of 1983 (A.C.A. Sections 6-20-307 and 6-20-319) as amended or as may be amended, with the following exceptions: (1) For the 1989-90 and later school years, all MFPA funds received by the Districts, as calculated in accordance with A.C.A. 6-20-302 (1987 Supp.), including the portion of that calculationrepresented by the Districts' magnet students, will not be exempt; and (2) the funds received by the Districts for any compensatory education, early childhood education, and other statewide programs contemplated by paragraph II.F. will be exempt only if the funds are exempt in all other districts in the State, and if so, those funds which are exempt cannot be counted by the Districts as expenditures satisfying Act 34's requirement that 70% of net current revenue be used to pay certified personnel. I. Staff Development To facilitate the Plans, the ADE authorizes each District up to four \"release days\" per year for the 1989-90 and 1990-91 school years. Those would be divided as two release days per semester. Further, two such release days, one per semester, shall be provided for the 1991-92 school year. 8 These \"rele~e days\" will have the effect of shortening by ~our days in each of the first two years and two days in the last year, the student contact/instructional days contained within the Districts school .calendars. The parties recognize that any detriment which might result from the reduction of contact days will be outweighed by the benefits derived from the staff development training (which will include all appropriate desegregation training and specialized training in strategies designed to reduce the level of achievement disparity between black and white students) and the increased efficiency and competence of the trained teachers. It is further understood and agreed that these release days shall be in addition to any staff development days currently required or which might be required in the future by ADE or other State authority. J. Recognition of Autonomy The State, Joshua and LRSD recognize that PCSSD and NLRSD are independent, sovereign desegregating school districts operating pursuant to court orders and agreements and that this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation activities with the LRSD and others. 9 K. District Budgets The Distric~s may utilize the receipt of funds paid pursuant to this settlement to _balance previous years' budgets and if this is done, neither the previous year's deficit nor such fund usage will be regarded as a violation of State law. L. Prohibition of Punitive Action The State shall take no action (including the enactment of retaliating legislation) against the for the purpose of Districts (including retaliatory failure to increase State aid and retaliatory reduction in State aid) because of this Litigation or this settlement. The State will enact no legislation which has a substantial adverse impact on the ability of the Districts to desegregate. Fair and rational adjustments to the funding formula which have general applicability but which reduce the proportion of State aid to any of the Districts shall not be considered to have an adverse impact on the desegregation of the Districts .  M. Rededicated Millages The court ordered on December 29, 1986 (reinstated Jan. 7, 1987) the rededication of certain millages of the Districts. It was the intent of the Districts and the court that all millages due to expire before the year 2007 be rededicated. The motion seeking the extension, however, failed to list 10 all of the millages and consequently not all of the millages sought .to be rededicated have actually been rededicated. The parties agree that the court's order of December 29, 1986 (reinstated January 7, 1987) should be corrected to include all millages of the Districts which would otherwise expire before or during the year 2007. Pursuant to this settlement, a corrected order has been submitted to the court for approval following final approval of the settlement. Upon approval, the order will be delivered to the responsible county officials. N. Limit of Liability The State's financial liability under this Settlement beyond that set forth in II.E. and II.F. shall be limited to $129,750,000 to be paid as set forth in Sections V, VI, VII and VIII herein. O. Majoritv to Minority Provisions (1) In any application for aid pursuant to Section 6 of Act 24 of the 1989 Regular Session of  the Arkansas General Assembly, the receiving district /  for M to M students may include in such application any M to M students it hosts who are eligible for participation pursuant to Section 6(A) of said Act. (2) The State will continue to make payments under the August 26, 1986 M to M stipulation so that -the host district receives its average cost of , , educating a student fQr each M to M transfer stud~nt enrolled in the host district. (3) When at least one Interdistrict School is operating in LRSD and in PCSSD, all M to M payments generat::id by Interdistrict School students paid by the State to LRSD and PCSSD (including payments to each district as sending district and receiving district), except transportation payments, will be pooled for the education of all Interdistrict School students. The instructional budgets of Interdistrict Schools will be equalized. the This provision does not change each district's obligation to construct and maintain the Interdistrict Schools within its boundaries. The State payments for M to M students not enrolled in Interdistrict Schools will continue in accordance with paragraph (2) above. ( 4) .-Beginning _the irst -year an -Interdistrict School is operating in LRSD and PCSSD, PCS SD will contribute $200,000 per year for five years to the pool of funds to be used by .b oth districts to operate Interdistrict Schools. P. Consent Order The parties consent to the entry of an order containini the requirements of Act 1 of 1989, Second Extraordinary Session, to the extent it is not inconsistent with this settlement. 12 III. State's Role in the Desegrecration Process A. Monitorincr. Comoensatorv Education The State shall be required (as a non-party) to monitor, through the ADE, the implementation of compensatory education programs by the Districts. If necessary as a last resort, ADE may petition the court for modification or changes in such programs being implemented by the Districts (but not for a reduction in the agreed level of State funding). If such petitions are filed, the undersigned parties will not object based upon lack of standing. ADE shall provide regular written monitoring reports to the parties and the court. Monitoring by the State shall be independent of that of the other parties. It is being done to ensure that the State will have a continuing role in satisfactorily remediating achievement disparities. Any recommendations made by ADE shall not form the basis of any additional funding responsibilities of the State .  A State plan for monitoring implementation of compensato~y education will be submitted to the parties within 60 days following execution of the settle.me.nt agreement. B. Statement of Support for the Plans The State, Districts and Joshua will provide to the court a statement of full support for the Plans 13 _, upon final approval of the settlement. This statement of . support will not be construed to burden the State with additional funding obligations beyond those existing at the ti.me of the execution of this agreement except those specifically set forth in this agreement. C. Petition for Election The State will join LRSD if LRSD petitions the court to allow it to hold a millage election. D. Statutes and Regulations Affecting Desegrecration The ADE will research and list laws that impede desegregation and submit legislation to repeal such laws to the General Assembly as soon as practicable. ADE will not knowingly promulgate or retain any regulations which impede desegregation, and the other parties will notify ADE of any regulations which they believe would have such an effect. If any regulation is demonstrated to have such an effect, the regulation will be modified or repealed or an exemption will be provided. The Districts, Knight and Joshua will assist the ADE in identifying existing and proposed statutes and regulations that impede desegregation. E. Elimination of State Funding for the Pulaski County Education Service Cooperative State funding for the Pulaski County Education Service has ceased and the funds were reallocated 14 to the Metropolitan Supervisor by order of the Court. Should these funds no longer be required by the Metropolitan Supervisor, they will be used to assist the ADE in securing the services of trained consultants to develop effective compensatory, remedial education programs designed to eliminate achievement disparities between black and white students and for other purposes intended to enhance desegregation. F. Commitment to Principles The State remains corrani tted to the following principles: a. There should be a  remediation of the racial academic achievement disparities for Arkansas students. b. Special education classes and gifted and talented classes should not be racially identifiable. c. The ADE and the Districts should work cooperatively to promote the desegre-gation goals of the State and the Districts and to ensure educational excellence in the public schools in Pulaski County and throughout the State. G. Remediation of Disparities in Academic Achievement The ADE, with the assistance of the Court's desegregation expert(s), will develop and will search for programs to remediate achievement disparities between black and white students. If necessary to develop such programs, the ADE will employ appropriately trained and experienced consultants in the field of remediation of racial achievement disparities and/or hire as staff members persons with such training and experience. The remediation of racial achievement disparities shall remain a high priority with the ADE. H. Test Validation ADE will conduct periodic reviews of tests used in the State's testing program to determine if students' race, sex, or culture adversely affect their test scores. If bias is found in any test, that test will not be used unless modified to eliminate the bias. I. In-Service Training ADE will establish in-service programs to assist in providing training for the staffs of desegregating school districts. Such programs will first be made available to the Districts. J. Recruitment of Minority Teachers The Districts will annually supply ADE information identifying the subject areas in which they have actual or foreseeable shortages of minority teachers. The ADE will then obtain from higher education sources information by race on new teacher  16 graduates in those subject areas and make such information available to the Districts. ADE will seek to increase the pool of minority teachers available to the Districts and to other districts in the state through recruitment efforts both in and out of state, and at the same time shall develop annual profiles of teachers available by race, specialty, subject area and area of certification. K. Financial Assistance to Minority Teacher Candidates The ADE will work with the Arkansas Department of Higher Education to reduce any racial disparity that may exist in the distribution of existing scholarships and to secure passage of legislation to financially assist minority students attending Arkansas colleges and universities who commit to  become teachers in Arkansas, including scholarships for freshmen and sophomores who are committed to pursuing a teacher-training program and juniors and seniors who have been accepted in teacher education programs. L. Minority Recruitment for ADE Staff The ADE will develop and implement a plan to identify jobs and consultant positions within the Department  in which minorities are underrepresented and will recruit and employ minority applicant_s for those positions so as to create a balanced, desegregated staff at all levels. , .., M. School Construction The ADE will. develop criteria for site selection of new schools, major school expansion and school closings. ADE will require that a district applying to it for approval of new construction or major school expansion provide a desegregation impact statement setting forth evidence that the proposed improvements do not have a segregative effect. ADE will not recommend or approve the site of any school in any county contiguous to Pulaski County if the construction or expansion of the school at the requested location of such school will have a substantial negative impact on any District's ability to desegregate. IV. Dismissal of Litigation A. Dismissal of the State with Prejudice and Release The State conditions this settlement upon its dismissal from this Litigation with prejudice in accordance with the terms of Attachment A. The  settlement is also conditioned upon the full execution of and compliance with the terms of the release of all claims against the State affixed  hereto as - Attachment A. The settlement of the State's liability, while contingent on the district court's approval, is not contingent upon court approval of any District's plan or a finding of 18 unitary status for . any District. Further, the settlement is c~ntingent upon a determination by the district court that the settlement is binding on the classes of all current, past and future LRSD, PCSSD and NLRSD black students, their parents and next friends. As part of this settlement, the parties stipulate that the Joshua Intervenors are proper class representatives under and otherwise meet the requirements of Rule 23(a) and (b)2 of the Federal Rules of Civil Procedure and support their approval. The settlement is also conditioned upon the full execution of the releases of the Districts attached as Attachments B, C and D. The parties pledge to diligently pursue acceptance of the settlement by the court. B. Agreement Regarding Litiaation Among Joshua and the Districts Joshua releases the Districts of all liability for issues which have been raised, or could have been raised, in this Litigation and commits that there will be no further liti~ation among or between Joshua, Knight and any of the Districts, other than proceedings to enforce the terms of this settlement or the terms of the Plans. c. Reserved Issue The Districts and Joshua contend that ADE has the authority to regulate private schools and should exercise that authority to insure that private schools comply with the same educational standards that are applicable to p_ublic schools. ADE is not persuaded that it is vested with such authority. The parties therefore agree that the issue of State regulation of private schools is not settled by this agreement and may be presented _ to the court for resolution at a future date. As this settlement provides for the dismissal with prejudice of the State as a party to this Litigation, the ADE agrees to make a special appearance following such dismissal -for the sole purpose of responding to a motion filed by any of the Districts or Joshua seeking the resolution of the single question of its legal authority to regulate private schools and require them to comply with certain educational standards. A finding that the ADE has such authority shall not be used by any party as the basis for any State liability for the period prior to such finding. V. Attorneys' Fees LRSD agrees to make no additional c !aims for attorneys' fees and to hold the State, PCSSD and NLRSD harmless for all pending LRSD claims for attorneys' fees against the State, PCSSD and NLRSD. If necessary to enforce the hold harmless agreement, the State will be entitled to deduct the amount of any payment for LRSD attorneys' fees made after the execution 20 of this agreement from any payment due from the State to LRSD under this agreem~nt more than five months after the . attorneys' fees payment is made. The State, LRSD, PCSSD and NLRSD will pay attorneys' fees and costs to the NAACP Legal Defense and Educational Ful)d, Inc . . (LDF). The fees will be paid upon terms set forth below for the work performed in this Litigation and other litigation which preceded this Litigation beginning with Aaron v. Cooper, Graves v. Board of Education and their progeny. The payment to LDF is on behalf of, and for the work of, all attorneys who have worked with LDF on behalf of the interests of black children in the Districts, to desegregate schools therein, over the duration of the Litigation. The amount is exclusive of the payments heretofore made by any of the parties. The State's portion of the fee will be $750,000 (Seven Hundred and Fifty Thousand Dollars); . the LRSD' s portion shall be $2,000,000 (Two Million Dollars); the PCSSD's portion shall be $300,000 (Three Hundred Thousand Dollars); and NLRSD's portion shall be $100,000 (One Hundred Thousand Dollars), which shall include settlement of fees for the voting rights action also ' pending in this court of which settlement on the merits is contemplated shortly. All such payments shall be due and payable on final approval except for the payments due from the PCS SD and NLRSD. The PCSSD payment shall mature six years from the date of final approval of the settlement. The NLRSD shall make two payments each in the amount of $50,000 (Fifty Thousand Dollars) no later than 10 days of final approval of ., , the settlement and July 1,. 1990, respectively. The State will advance LRSD's share. of the fees and reduce total payments due LRSD under this agreement by that amount. The amounts will be deducted in the final years of payment to LRSD. The parties are satisfied that over the thirty-three years of this Litigation, Joshua and its predecessor parties, all of whom have been represented by attorneys for the LDF have expended time and incurred costs for which they have not been compensated. The parties are also satisfied, upon a review of their own time records and costs in this Litigation over the last five years, that the payment is fair and reasonable and consistent with the payments made over that period of ti.me to counsel for the o~er parties. The parties also agree for purposes of this settlement that Joshua is a prevailing party for purposes of relief. VI. The LRSD Settlement A. Payment Schedule and Terms The State will make the following payments to the LRSD (or any successor district or districts to which  the territory now within LRSD may be assigned or for the benefit of the students in such territory if the State or any other entity becomes responsible for the education) on or before the dates indicated: 22 - (1) Payments for compensatory education progr_ams and other desegregation expenses will be as follows: Within 10 days of Final Approval $4,475,000 January 1, 1990 3,475,000 July 1, 1990 4,609,250 January 1, 1991 3,609,250 July 1, 1991 4,747,528 January 1, 1992 3,747,528 July 1, 1992 4,889,954 January 1, 1993 3,889,954 July 1, 1993 5,036,652 January 1, 1994 4,036,652 July 1, 1994 4,057,460 January 1, 1995 3,057,460 July 1, 1995 2,985,131 January 1, 1996 1,985,131 July 1, 1996 1,844,811 January 1, 1997 844,811 July 1, 1997 1,266,770 January 1, 1998 266,770 July 1, 1998 152,387 . January 1, 1999 152,387 $59,129,886 - 23 (2) The State will make additional payments to LRSD totaling $13,870,114 over a seven year period as set forth below: Within 10 days of Final Approval $2,000,000 7/1/90 $2,000,000 7/1/91 $2,000,000 7/1/92 $2,000,000 7/1/93 $2,000,000 7/1/94 $2,000,000 7/1/95 $1,870,114 These payments are cash equivalent payments in lieu of formula guarantees for LRSD provided for in an earlier signed version of this settlement. B. Loan Provisions In addition to the above-mentioned payments, the State agrees to provide loans to LRSD (or any successor district or districts to which the territory now within LRSD may be assigned or for the benefit of the students in such territory if the State or any other entity becomes responsible for  their education) .between July 1, 1989 and July 1, 1999 in a cumulative amount of not more than $20,000,000.00 on the following terms: (1) . Each loan will be amortized over a 20-year period to be paid in full to an escrow account established by the parties as described below with 20 24 equal annual payments of principal begin~ing seven years following the execution of the loan: (2) No more than $6,000,000 will be loaned in any biennium and no loan will be made before July 1, 19891 (3) Each loan will bear interest beginning seven years following the execution of the loan at the rate of three percent (3%) per annum, such interest to be paid annually at the time of the annual principal payments to an escrow account established by the parties as described below; (4) The proceeds of the loans shall be made payable to a trust governed by a trust committee consisting of the Director of the Department of Education {or designee), the LRSD Superintendent {or designee) and a designee of Joshua.  The loan proceeds shall be used for desegregation purposes including, but not limited to, school construction or renovation, salaries of instructional personnel, equipment purchase of instructional and supplies, program development and implementation costs, consultant,s' fees and and staff development training of LRSD principals , and teachers to promote desegregation. The loan proceeds will not be utilized directly or indirectly as a vehicle for generating income for LRSD through higher interest rates; (5) The loan(s) will be secured by a first lien in favor of the State on existing, extended or new millages (whichever the State chooses}, such first lien to be assured by an opinion letter to the benefit of the State from LRSD's bond counsel; ( 6) LRSD and the State will establish a joint escrow account into which all principal and interest due on loans made under this agreement will be paid. If at any time between the date of this agreement and December 31, 2000 the  composite scores of LRSD black students (excluding special education students) on a standardized test agreed upon by the State and LRSD are 90% or greater of the composite scores of LRSD white students (excluding special education students} , the escrowed funds will be 26 paid to LRSD and any outstanding loans will be forgiven . If the 90% goal is . not reached by December 31, 2000, the escrow funds will be paid to the State and any outstanding loans will continue to be repaid according to the schedule set orth in this agreement. The intent of this subsection is that LRSD will receive twenty million dollars plus any accrued interest if its goal of increasing student achievement as described in this subsection is reached and that the State will be repaid in full amount of all loans plus interest if LRSD does not reach its goal. VII. The PCSSD Settlement A. Financial Settlement PCSSD and Joshua have asserted claims and potential claims against the State on behalf of PCSSD students relating to miscalculation of MFPA, the State's role in the Granite Mountain transfer and compensatory education needs. The following provisions are made to settle all such claims and any others which have been or could have been made by PCSSD or Joshua against the State on behalf of PCSSD students. 27 ., 1. Magnet Pavments The ADE sha~l, beginning with the 1989-90 school . year, make . payments of school aid for PCSSD magnet students directly to PCSSD which shall in turn reimburse LRSD at the rate of $1,550 per PCSSD magnet school student being educated in LRSD magnet schools less any magnet surplus credit available under paragraph II.B. herein. The State may, at its option, continue the direct payment to the LRSD of the remaining $1,550 of magnet school operational costs for PCSSD magnet students or may make such ~id payments for PCSSD magnet students directly to PCSSD. If the latter option is selected, then PCS SD shall make total payments to LRSD of $3,100 per year for each PCSSD magnet student or the appropriate pro rata share of said $3,100 if  such students are magnet students for less than the full school year less any magnet surplus credit available u~der II.B. herein. 2. Other Payments (a) The State shall make the following six scheduled payments to PCSSD: Within 10 days of Final Approval $3,000,000 07/01/90 07/01/91 07/01/92 07/01/93 07/01/94 28 $3,000,000 $2,500,000 $2,500,000 $2,500,000 $2,500,000 (b) The State shall make the following payments as cash equivale?ts in lieu of the Temporary Formula and the transportation aid adjustment set out in an earlier signed version of this settlement: Within 10 days of Final Approval $1,000,000 7/1/90 7/1/91 7/1/92 7/1/93 7/1/94 7/1/95 B. Staff Develooment $1,500,000 $2,700,000 $2,700,000 $2,700,000 $2,700,000 $2,700,000 PCSSD is exploring the utility of a program under which all certified staff would experience three college hours of course work in Black History or other similar course offering. PCSSD is exploring and evaluating this concept to facilitate its efforts to reduce the achievement disparity between black and white students. ADE and PCSSD recognize and understand that such a program, if it required PCSSD to fully fund presently prevailing college tuition charges, would be prohibitively expensive. ADE pledges to use its best efforts to work with appropriate Arkansas colleges and universities to facilitate a special arrangement which would significantly reduce the cost of such a program to PCSSD and 29 make it financially possible to implement. ADE . assumes no additional financial responsibility pursuant to this commitment. c. Food Services LRSD agrees  to contract with PCS SD for any food products which LRSD can obtain from PCSSD at the same or lower cost than LRSD can obtain the same quality products from other vendors. D. Housing ADE agrees to use its best efforts to influence appropriate state agencies to assist PCSSD in its efforts to promote and secure scattered site housing in the PCSSD by securing and providing, to the extent feasible, state owned or controlled land suitable for such use. VIII. The NLRSD Settlement NLRSD and Joshua have asserted claims and potential claims against the State on behalf of NLRSD students relating to miscalculation of MFPA and to compensatory education needs .  The following provisions are made to settle all such claims and any others which have been or could have been made by NLRSD or Joshua against the State on behalf of NLRSD students. A. Magnet Pavrnents The ADE shall, beginning with the 1989-90 school year, make payments of school aid for NLRSD magnet students directly to NLRSD which shall in turn 30  reimburse LRSD at he rate of $1,550 per NLRSD magnet school student ~eing educated in LRSD magnet schools less any magnet surplus credit available under paragraph II.B. herein. The State may, at its option, continue the direct payment to the LRSD of the remaining $1,550 of magnet school operational costs for NLRSD magnet students or may make such aid payments for NLRSO magnet students directly to NLRSD. If the latter option is selected, then NLRSD shall make total payments to the LRSD of $3,100 per year per each NLRSD magnet student or the appropriate pro-rata share of said $3,100 if such students  are magnet students for less than the full school year less any magnet surplus credit available under paragraph II.B. herein. B. Compensatory Education Pavments Beginning with the 1989-90 school year and continuing through the 1995-96 school year, the State will, on July 1 of each year, pay NLRSD $389,025 (a total of $2,723,175 for the seven year period). C. Additional Payments As additional compensatory education assistance, beginning with the 1990-91 school year and continuing through the 1996-97 school year, the NLRSD will receive payments to support the reduction of the percentage of the total black student population that 31 is in its special education program. The formula fbr such payments is_ as follows: (1) The first step is to determine a Base Year, or starting point, to which placements in further years will be compared. The October 1, 1987 general enrollment data and the December, 1987 special education count will be used to establish this base and calculations pursuant to this formula will be based on those counts in future years. On October 1, 1987, the NLRSD had 4083 black students, including those attending magnet schools, (Total Black Population - \"TBP\") and 805 black students were in special education, including those attending magnet schools, (Blacks in Special Education - \"BSE\") in December, 1987. Thus, 19.72% of the District's total black population was in special education ( \"Black Placement Rate\"). (2) Subject to the provisions of paragraph (3) below and solely for determining the amount of these formula payments, the NLRSD will receive the State Base Equalization Rate (SBER) multiplied by the special education weights for the difference between the number of black students actually in special education  and the number that would have been in special education if there had been no reduction in the BPR since the Base Year. Because of delayed year financing, the student counts will be taken in school 32 _., years 1989-90 through ~995-96 but payments for those counts will be made in 1990-91 through 1996-97 using the payment year's SBER. By way of illustration, if the TBP in 1989-90 is 4212, applying the BPR for the Base Year would result in .1972 x 4212, or 830.6, black students in special education. If the actual number is 772, the District would be entitled to payment for the special education weights (average .714 per student) for 58.6 students, which would result in 41.8 weights. (3) Since the District cannot control placement decisions in other districts, for purposes of this formula black students who transfer into the NLRSD already placed in special education by their original school district will be excluded from the count of TBP and BSE for their first year of enrollment in the NLRSD to the extent that those incoming transfers exceed black students in special education who transfer from the NLRSD to other districts. For example, if 52 black special education students  transfer into the NLRSD between the 1988-89 and 1989-90 school years while only 37 transfer out, 15 black students would be excluded from the TBP and ESE in 19 89-9 0 for the purpose of this formula. Thus, the NLRSD would be counted as only having 4197 TBP instead of 4212 and 757 BSE instead of 772 and would be paid for the special education weights associated _, I  i \\. ( with the difference between 827.6 and 757 BSE, i.e., 70.6. (4) As further support for the reduction of black students placed in special education and solely for the purpose of determining the amount of the payments, the NLRSD will be entitled to payment for the special education weights associated with the difference between the number of students removed from special education in the NLRSD and placed in the regular program in the NLRSD and those moved from the regular NLRSD program an_d placed in special education in the NLRSD. For example, if between 1988-89 and 1989-90 the District removed 83 black students from special education and placed 64 in special education, the District would be paid for the special education weights for an additional 19 students, which would result in 13.6 weights. (5) A list of names (and identification numbers, if available) of the special education students referred to in paragraph ,3 and 4 above, will be provided to the Arkansas Department of Education, before any payment is made under these provisions. (6) Because of delayed year financing, the operation  of this formula will not result in any additional funds until 1990-91. Presently, the SBER is $1,944.55 and, asswning a $74.00 per year 34 increase, it would be $2,018 in 1990-91. Using the above examples, ~his would generate $129,757. (7) The District may continue to receive payments under this formula only through the 1996-97 school year {inclusive) but in no event will the District receive more than $2,344,055 cumulatively through the operation of this formula. The limit of the State's obligation under this formula is $1,276,825. If the amount of the payments exceeds $1,276,825, LRSD and PCSSD agree to pay those excess amounts up to the point that either (a) the over-all payments to NLRSD under this formula reach $2,344,055 or (b) the expiration of the formula, whichever comes first. (8) Any payments required of LRSD and PCSSD under paragraph (7) will be shared on the basis of 75% for LRSD and 25% for PCSSD. (9) If, when the formula expires, the fonnula has generated less than $1,276,825, the State will pay the difference between what it has paid and $1,276,825 to LRSD and PCSSD on the basis of 75% to LRSD and 25% to PCSSD. (10) Any payments made pursuant to this formula will be separate from the District's usual MFPA payments. D. Description of Additional Comoensatory Education Programs Within fifteen days of the final approval of this settlement, the NLRSD will develop a description of the compensatory education programs to be developed with the additional compensatory education funds made available through this settlement and will petition the court to amend NLRSD  s Plan accordingly. The State, Joshua, and the Districts will support the NLRSD in this effort. IX. Execution A. This Pulaski County School Desegregation Case Settlement Agreement of March, 1989, is executed as revised by counsel with authority of their clients this 28th day of September, 1989. LITTLE BY'l ~~q~~~::;2:~~~- Christopher Helle One of Its Attorneys * * * * * PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1 By~l \\h.-nn-1,(Q.,'n,- ~_1/amuel Jones / / i~e o/ts Attvs ./ 36 * * * * * NORTH LITTLE ROCK SCHOOL DISTRI~ By: , ~ t). sifpnw. Jones ~ One of Its Attorneys * * * * * ARKANSAS DEPARTMENT OF :::CA~~~ H. William Allen One of Its Attorneys .. * * * * JOSHUA INTERVENORS By: ~ ti Id, ih\u0026amp; ( b t,/A s \"JR) d6hn W. Walker J One of Their Attorneys .. * * * * KNIG~RVENORS By: )~ Pauz?/ Ward One 6 Their Attorneys . RELEASE OF ALL CLAIMS AGAINST THE STATE For and in consideration of its payments and commitments set forth in the Pulaski County School Desegregation Case Settlement Agreement to which this release is attached (hereafter, \"the Consideration), the undersigned parties do hereby release, acquit and forever discharge the State of Arkansas, its constitutional officers, elected officials, appointees, employees, agencies, departments, their predecessors and successors including, but not limited to, the Arkansas State Board of Education and its members (hereafter collectively referred to as \"the Released Parties\") of and from any and all actions, causes of action, claims and demands which the undersigned now have or may hereafter have arising out of or in any way related to any acts or omissions of any and every kind to the date of the execution of this release by the released parties which in any way relate to racial discrimination or segregation in public education in the three school districts in Pulaski County, Arkansas or to the violation of constitutional or other rights of school children based on race or color in the three school districts in Pulaski County, Arkansas. It is understood and agreed that the Consideration is valuable and is given in full and final compromise of disputed claims and that the giving of the Consideration is not to be construed as an admission of any liability on the part of any of the Released Parties beyond 2 the liability found to date by the United States District Court for the Eastern District of Arkansas and the Court of Appeals for the Eighth -Circuit and that the terms of this release are contractual and not a mere recital. It is further understood and agreed that the litigation now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1, et al, No. LR-C-82-866 and cases consolidated therein and their predecessors (the \"Litigation\") is to be dismissed with prejudice as to the Arkansas State Board of Education and the former and current members of that board named in the Litigation. We have read this release and had it explained to us by our attorneys who have signed as witnesses hereto and we understand that the above referenced payments or commitments are in full and final compromise of any and all claims and causes of action. We understand that in the event all parties for which there is a signature blank below do not sign this release, the release is effective and binding on those parties that do sign. EXECUTED this day of ______ , 1989 by: WITNESSED AND APPROVED: FRIDAY, ELDREDGE \u0026amp; CLARK 200 First Commercial Building Little Rock, AR 72201 By=-~-----,.---------- Christopher Heller One of its Attorneys LITTLE ROCK SCHOOL DISTRICT By ~P:-r_e_s_i.,. .a~e-n-:-t-,----:B=-o-a-r\"\"\"'a=--o-f-=--=-o-:-i-r_e_c_,t-o-r-s- EXECUTED THIS day of WITNESSED AND APPROVED: WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building Little Rock, AR 72201 3 * * * * * -------, 1989 by: PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1 BY----,--,,----,----,,--,,,__.....,.. ___ _ President, Board of Directors By: -M-. -S-am-u-e=l J-o-n-es- -------- One of its Attorneys * * * * * EXECUTED this --- day of -------, 1989 by: WITNESSED AND APPROVED: JACK LYON \u0026amp; JONES, P.A. 3400 TCBY Tower Little Rock, AR 72201 By: -S-te-p-h-e,n- -W-. -J-o-n-e-s- -------- One of its Attorneys NORTH LITTLE ROCK SCHOOL DISTRICT By __ __,...,,------------,----- President, Board of Directors * * * * * EXECUTED this day of -------, 1989 by: WITNESSED AND APPROVED: (NAACP) LEGAL AND EDUCATIONAL DEFENSE FUND, INC. BNyorm-a-n -J-. -C-ha-ch-k-in- ----- One of its Attorneys and JOHN W. WALKER, P.A. 1723 S. Broadway Little Rock, AR 72201 By ______________ _ John W. Walker One of its Attorneys THE JOSHUA INTERVENORS By ____ ...,,.,,--,,.,,._ _______ -,--__ _ LRSD Class Representative By ____ ...,....,,-----.---.---.---- President, Little Rock,  Arkansas Branch of the NAACP BY.,.,..,,.........,~----,,-----------,-\"T\"\"\"- NLRSD Class Representative and President of the North Little Rock, Arkansas Branch of the NAACP ByP-C:S:S-D- ::C=l-a:s=s- -R-=ep:-r-e-s-e-n-t-a-t-i-v-e,- --- EXECUTED this --- day of WITNESSED AND APPROVED: MITCHELL \u0026amp; ROACHELL 1014 W. Third Little Rock, AR 72201 4 * * * * * ------, 1989 by: KNIGHT INTERVENORS By _________ --,-_____ _ LRCTA Representative BY__,. _____________ _ Richard W. Roachell One of its Attorneys By _________ - _____ _ PACT Representative By __________ - ____ _ NLRCTA Representative ....... RELEASE OF ALL CLAIMS AGAINST THE LRSD For and in consideration of its relinquishment of claims and commitments set forth in the Plans and the Pulaski County School Desegregation Case Settlement Agreement to which this release is attached (hereafter, \"the Consideration\"), the undersigned parties do hereby release, acquit and forever discharge the LRSD, its directors, administrators, appointees, employees, successors agencies, (hereafter departments, their predecessors and collectively . referred to as \"the Released Parties\") of and from any and all actions, causes of action, claims and demands which the undersigned now have or may hereafter have arising out of or in any way related to any acts or omissions of any and every kind to the date of the execution of this release by the released parties which in any way relate to racial discrimination, segregation in public education, or to violations of other constitutic~al or statutory rights of school children, based on race or color, in the three school districts in Pulaski County, Arkansas. It is understood and agreed that the Consideration is valuable and is given in full and final compromise of disputed claims and that the giving of the Consideration is not to be construed as an admission of any liability on the part of any of the Released Parties beyond the liability found to date by the United States District Court for the Eastern District of Arkansas and the Court of Appeals for the Eighth Circuit and ATTACHMENT B 2 that the terms of this release are contractual and not a mere recital. . It is further understood and agreed that the litigation I now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1, et al, No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not limited to, Coooer v. Aaron, Norwood v. Tucker and Clark v.  Board of Education of the Little Rock School District) (the \"Litigation\") is to be dismissed with prejudice as to the LRSD and the former and current members of its board named in the Litigation. This dismissal is final for all purposes except that the Court may retain jurisdiction to address issues regarding the implementation of the Plans. We have read this release and had it explained to us by our attorneys who have signed as witnesses hereto and we understand that the above referenced relinquishment of claims and commitments are in full and final compromise of any and all claims and causes of action. We understand that in the event all parties for which there is a signature blank below do not sign this release, the release is effective and binding on those parties that do sign. 3 EXECUTED this --- day of -------, 1989 by: WITNESSED AND APPROVED: ALLEN LAW FIRM A Professional Corporation 1200 Worthen Bank Bldg. Little Rock, AR 72201 ARKANSAS STATE BOARD OF EDUCATION By-::-.--,----------=--,,---:----- By: _______________ Chairman, Board of Directors H. William Allen One of its Attorneys * * * * * EXECUTED THIS --- day of -------, 1989 by: WITNESSED AND APPROVED: WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building Little Rock, AR 72201 By: _M_ __s am_u_e~l__J_ o__ n_e_s_ _____ One of its Attorneys PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1 By __ ,_ ___________ _ President, Board of Directors * * * * * EXECUTED this --- day of -------, 1989 by: WITNESSED AND APPROVED: JACK LYON \u0026amp; JONES, P.A. 3400 TCBY Tower Little Rock, AR 72201 By __ -,-___________ _ Stephen W. Jones One of its Attorneys NORTH LITTLE ROCK SCHOOL DISTRICT By-----,-:-------,-----,----- President, Board of Directors * * * * * EXECUTED this --- day of _______ , 1989 by: WITNESSED AND APPROVED: THE JOSHUA INTERVENORS (NAACP) LEGAL AND EDUCATIONAL DE_FENSE FUND, INC. By _____________ _ Norman J. Chachkin One of its Attorneys and By ______________ _ LRSD Class Representative ByP-r-e-s-i-d,e-n:-t,- -L--i.t-t-l-e= -R-o=c:k-, -,----- Arkansas Branch of the NAACP JOHN W. WALKER, P.A. 1723 S. Broadway Little Rock, AR 7220l ByJo~h-n= W--. -W=-a-lk-e-r= --c--------- One of its Attorneys 4 By :--::Nc-:L-=RS=o::--::c::-:1.-a=-s-s-=R-e_p_r_e_s_e_n_t,...a_t,...1.,.. v-e-- and President of the North Little Rock, Arkansas Branch of the NAACP By- =-==-==-=---=-'=-----=,-----,--.,......,..--- PCS SD Class Representative * * * * * EXECUTED this --- day of ______ , 1989 by: WITNESSED AND APPROVED: MITCHELL \u0026amp; ROACHELL 1014 W. Third Little Rock, AR 72201 BRyic~ha-rd- -W.- -R-oa-c-he-ll- ----- One of its Attorneys RNIGHT INTERVENORS By -L=RC-=TA= =R-e=p-r-e--s-e=n-t-a-t-i-v-e-, ---,------- By= -===--==-------,--....,.....,,------- PACT Representative By =NL- R=C- T=A ::R=e:p:r-e-s::e:n-t-a-t-i-v-e- ,-------- RELEASE bF ALL CLAIMS AGAINST THE PCSSD For and in consideration of its relinquishment of claims and commitments set forth in the Plans and the Pulaski County School Desegregation Case Settlement Agreement to which this release is attached (hereafter, \"the Consideration\"), the undersigned parties do hereby release, acquit and forever discharge the PCSSD, its directors, administrators, appointees, employees, agencies, departments, their predecessors and successors (hereafter collectively referred to as \"the Released Parties\") of and from any and all actions, causes of action, claims and demands which the undersigned now have or may hereafter have arising out of or in any way related to any acts or omissions of any and every kind to the date of the execution of this release by the released parties which in any way relate to racial discrimination, segregation in public education, or to violations of other constitutional or statutory rights of school children, based on race or color, in the three school districts in Pulaski County, Arkansas. It is understood and agreed that the Consideration is valuable and is given in full and final compromise of disputed claims and that the giving of the Consideration is not to be construed as an admission of any liability on the part of any of the Released Parties beyond the liability found to date by the United States District Court for the Eastern ATTACHMENT C 2 - District of Arkansas and the Court of Appeals for the Eighth Circuit and that the.terms of this release are contractual and not a mere recital. It is further understood and agreed that the litigation now pending in the United States District Court for tl}e Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1, et al, No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not limited to, Zinnamon v. Pulaski Countv School District, LR-C-68-154) ( the \"Litigation\") is to be dismissed with prejudice as to the P.CSSD and the former and current members of its board named in the Litigation. This dismissal is final for all purposes except that the Court may retain jurisdiction to address issues regarding implementation of the Plans. We have read this release and had it explained to us by our attorneys who have signed as witnesses hereto and we understand that the above referenced relinquishment of claims and commitments are in full and final compromise of any and all claims and causes of action. We understand that in the  event all parties for which there is a signature blank below do not sign this release, the release is effective and binding on those parties that do sign. .... 3 EXECUTED this --- day of ______ , 1989 by: WITNESSED AND APPROVED: FRIDAY, ELDREDGE \u0026amp; CLARK 2000 First Commercial Bldg. Little Rock, AR 72201 By: --,---,,----------,--,,------ Christopher Heller One of its Attorneys LITTLE ROCK SCHOOL DISTRICT _By_--,-------,,--,=-----,----- President, Board of Directors * * * * * EXECUTED THIS --- day of -------, 1989 by: WITNESSED AND APPROVED: ALLEN LAW FIRM A Professional Corporation 1200 Worthen Bank Building Little Rock, AR 7i201 By: ____________ _ H. William Allen One of its Attorneys ARKANSAS STATE BOARD OF EDUCATION ByC-h=a-i-rm,-a--n-, --B-o--a-r,d, --o-f- -D-.i-r-e-.c,t-o--r-s- - * * * * * EXECUTED this day of ______ , 1989 by: WITNESSED AND APPROVED: JACK LYON \u0026amp; JONES, P.A. 3400 TCBY Tower Little Rock, AR 72201 By ----~------------ Stephen W. Jones One of its Attorneys NORTH LITTLE ROCK SCHOOL DISTRICT By=---=----,,_-...,,....-,=--::--:----:--- President, Board of Directors EXECUTED this day of ______ , 1989 by: WITNESSED AND APPROVED: THE JOSHUA INTERVENORS (NAACP) LEGAL AND EDUCATIONAL DEFENSE FUND, INC. By _____________ _ Nonnan J. Chachkin One of its Attorneys and By~-=~=---,,,_------,------ LRSD Class Representative By=---=----,--,,.....,.~-=-__,,-,--....,...---- President, Little Rock, Arkansas Branch of the NAACP .. JOHN W. WALKER, P.A. l 7 z:i c _ ...Broadway Little Rock, AR 72201 - - - By -:J,_o,..h-n--=w-=--. -w-a-=1-=-k_e_r _______ One of its Attorneys 4 By _____ ~=------,-----,--.,-,---- NLRSD Class Representative and Pre  idant of the North Little Rock, Arkansas Branch of the NAACP By ______________ _ PCSSD Class Representative * * * * * EXECUTED this day of -------, 1989 by: WITNESSED AND APPROVED: MITCHELL \u0026amp; ROACHELL 1014 W. Third Little Rock, AR 72201 BRYic-h,a-rd- -W,.. -R-o-a-c-h-e-ll- ------ One of its Attorneys KNIGHT INTERVENORS By ___________ -=-------,------- LRCTA Representative By --------,,--------,------- PACT Representative By __________ -,-____ _ NLRCTA Representative f . __., _ RELEASE OF ALL CLAIMS AGAINST THE NLRSD For and in consideration of its relinquishment of claims and commitments set forth in the Plans and the Pulaski County School Desegregation Case Settlement Agreement to which this release is attached (hereafter, \"the Considerationa), the undersigned parties do hereby discharge the NLRSD, its release, acquit and forever directors, administrators, appointees, employees, agencies, departments, their predecessors and successors (hereafter collectively referred to as \"the Released Parties\") of and from any and all actions, causes of action, claims and demands which the undersigned now have or may hereafter have arising out of or in any way related to any acts or omissions of any and every kind to the date of the execution of this release by the released parties which in any way relate to racial discrimination, segregation in public education, or to violations of other constitutional or statutory rights of school children, based on race or color, in the three school districts in Pulaski County, Arkansas. It is understood and agreed that the Consideration is valuable and is given in full and final compromise of disputed claims and that the giving of the Consideration is not to be construed as an admission of any liability on the part of any of the Released Parties beyond the liability found to date by the United States District Court for the Eastern District of Arkansas and the Court of Appeals for the Eighth ATTACHMENT D 2 Circuit and that the tenns of this release are contractual and not a mere recital. It is further understood and agreed that the litigation now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski Countv Special School District No. 1, et al, No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not limited to, Graves v. Board of Education of North Little Rock School District and Davis v. Board of Education of the North Little Rock School District (the \"Litigation\") is to be dismissed with prejudice as to the NLRSD and the former and current members of its board named in the Litigation. This dismissal is final for all purposes except that the Court may retain jurisdiction to address issues regarding implementation of the Plans. We have read this release and had it explained to us by our attorneys who have signed as witnesses hereto and we understand that the above referenced relinquishment of claims and commitments are in full and final compromise of any and  all claims and causes of action. We understand that in the event all parties for which there is a signature blank below do not sign this release, the release is effective and binding on those parties that do sign. l  ' 3 EXECUTED this day of ______ , 1989 by: WITNESSED AND APPROVED: FRIDAY, ELDREDGE \u0026amp; CLARK 2000 First Commercial Bldg. Little Rock, AR 72201 LITTLE ROCK SCHOOL DISTRICT By ___ ---:-:----,--=---=--=---,----- President, Board of Directors ByCh=ris-to-p-h-er- H-e-l-le-r ----- One of its Attorneys * * * * * EXECUTED THIS day of -------, 1989 by: WITNESSED AND APPROVED: WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building Little Rock, AR 72201 By: ____ - _______ _ M. Samuel Jones One of its Attorneys PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1 By __ - ______________ _ President, Board of Directors * * * * * EXECUTED this --- day of ______ , 1989 by: WITNESSED AND APPROVED: ALLEN LAW FIRM A Professional Corporation 1200 Worthen Bank Bldg. Little Rock, AR 72201 By _____________ _ H. William Allen One of its Attorneys ARKANSAS STATE BOARD OF EDUCATION By...,,.-;----:-------,,---,,---,----- Chairman, Board of Directors * * * * * EXECUTED this --- day of -------, 1989 by: WITNESSED AND APPROVED: THE JOSHUA INTERVENORS (NAACP) LEGAL AND EDUCATIONAL DEFENSE FUND, INC. ByN~o-rn--ia-n- --J-.- =C,h-a--c-h:k-i-n- :--:------- By .,....,,.......,..,..----,c-::----------,----- LRSD Class Representative One of its Attorneys and BPyr=es-id-e-n-t-,: -L=it-tl-e- -R-o-c-k-, ----- Arkansas Branch of NAACP .... JOHN W. WALKER, P.A. 1723 S. Broadway Little Rock, AR 7228J BJyo-h=n -W-.= W--a-lk-e-r- -,.--------- One of its . Attorneys 4 ByN=L-R-:S-D:: :-C::l:a--s-s:: :R-::e--p-r-e::s:-e-n--t-a-.t,i.v..e., ..--and President of the North Little Rock, Arkansas Branch of the NAACP By~---------...,,..,,-------------- PCSSD Class Representative * * * * * EXECUTED this --- day of ______ , 1989 by: WITNESSED AND APPROVED: MITCHELL \u0026amp; ROACHELL 1014 W. Third Little Rock, AR 72201 By-_____________ _ Richard W. Roachell One of its Attorneys KNIGHT INTERVENORS ByLR~C-TA= .R.,e,p.-re=s-e-n-t-a-ti-v-e- -,,------ BPyA=CT- =Re-p-r-e-se-n-t-a-ti-v-e- -------- ByNL=RC-T=A --R-e-p:r-e=se-n-t~at-i-v-e- ------- H . WUJ..lAM Au.DI S..V.t\u0026gt;M J.-.o:so:-- All.EN LA w FIRM A PROFESSIONAL CORPORATION A TIDRNEYS AT LAW 1200 WORTiiEN BANlC BUll.DING LITn..E Roa:, ARKANSAS 72201 (501) 374-7100 'Tll.l:CCl'Y ,,01, )74, Jt,)J May 31, 1989 Re: Little Rock School District vs. Pulaski County Special School District No. 1, et al, NO. LR-C-82-866 Nl1'A MOSl;R llGAJ. ASSlST A! John W. Walker, Esq. Christopher Heller, Esq. Stephen W. Jones, Esq. HAND DELIVERED M. Samuel Jones, Esq. Richard W. Roachell, Esq. Dear Counsel: In accordance with Ill .A. of the Pulaski County Desegregation Settlement 1-.qreement of March, 19 89, we are enclosing an Arkansas Department of Education plan for monitoring implementation of compensatory education in the three school distrjcts. The settlement agreement does not provide for filing or even submission of this document to the Court at this time. However, we are sending copies to both Judge Woods and ~r. Mccutcheon so that they may be aware that this requirement of the settlement agreement has been met. We anticipate that the enclosed plan may be modified after receiving your comments and after we learn more about the monitoring role that will be undertaken by Eugene Reville. Sincerely you~s, ALLEN LA\\\u0026gt;! FI RM H. William Allen HWA/nm Enclosure cc: The Honorable Henry Woods The Honorable Aubrey V. Mccutcheon, Jr. bee: Dr. Ruth Steele Sam Bratton, Esq. Sharon Streett, Esq . Marion J. Starling, Jr., Esq. EXHIBIT :i ARKANSAS DEPARTMENT OF EDUCATION PULASKI COUNTY DESEGREGATION MONITORING The Pulaski County School Desegregation Case Settlement Agreement (the Agreement) provides for the State of Arkansas, through the Arkansas Department of Education (ADE), to monitor the implementation of compensatory education programs by the school districts in Pulaski County. The ADE defines compensatory education programs as those programs which are directed at improving the academic performance of black students whose academic achievement has been adversely affected by racial discriminatory practices within the school. The state believes that the compensatory effects of the programs should be measured by the extent to which disparities in educational achievement between minority and majority students are reduced. Although the Agreement identifies compensatory education as the primary area for monitoring, the state's monitoring responsibility is necessarily broader in order to ensure an equitable education for all students and demonstrate fiscal accountability to the tax payers of Arkansas. Monitoring responsibilities for desegregation effectiveness by necessity mu s t permeate all elements of schooling to ensure equal opportunities through special state funded remedial programs. Therefore, it shall be the goal of the ADE to provide extensive monitoring and evaluation of the Agreement. The primary focus of the process shall be a continuous assessment of the remedial effectiveness of programs supported partially or fully by special state funding resulting from Little Rock School District vs. Pulaski County Special School District, et al., No. LR-C-82-866. The programs and services receiving special funding include: 1. Compensatory Education 2. Magnet Schools 3. Magnet School Transportation 4. Majority to Minority Transfers The Agreement commits the state to: 1. Direct funding to the districts (within the limits provided in the Agreement) 2. Principles of desegregation a. Remediation of racial academic achievement disparities 1 - b. Standardized test validation c. Racial balance in special programs d. Minor.i ty recrui t .mcnt and employment 3. Site selection crlteria for school construction or ~xpa.nsion 4. Staff development release days for the three districts through 1990-1991 S. Tw~nt.y m.i l lion dollars loan to Little Rock School District to develop programs for rem~diating achievement disparities and for other programs and initiatives which fncilitate desegregation 6. Selection of an agreed standardized test to satisfy the lo~n forgiveness of the Agreement Further, Section III-A of the Agreement states: ,, .. The ADE shall provide regular written monitoring reports t~ the partiP.s and the court. MDn.itoring by the statP. shall be independent. of that of the other parties. 3. As a last resort, ADE may petition the court for modifications or changes in such programs being imp)emented by the districts \\but not for il reduction in the agr~ed level of state funding). ~- Any recommendations made by J\u0026gt;.DE shall not form the basis of any additional funding responsibilities of the state. Jl.l though, the J\u0026gt;.DE: moni taring shall be independent of that of t:ie other parties, the districts are advised to establish a11 internal monitoring p1an. The purpose shall be to determine and document that: 1. Th~ desegregation plan was, or is being implemented on a timely basis, 2. lneguities do not exist and/or do not recur; and 3. All students are afforded an equitable education. 2  !SGNl TOHHIG ~he monjtoring process shall be conducted to ensure effectiveness of court order remedies and will include site visitations, review of plans, review of statistical and administrative data as well as perceptual responses from school personnel, patrons and students. Further, monitoring visits should provide evidence that the school s.ite is representative of the pluralistic nature of the Arr,erican Society. Moni tor:1 ng tcc1ms shall be selected by the Director, J:-.rkansas Dep,ntment of Educ at ion (ADE), General Di vision. The teams shall include ADE personnel and may iuclude others as designated by the Director. Monitoring visits .shall be conducted according to a schedule e;-:;tc:1blis11cd by the l\\DE.  The rnoni toring process shall include announced and unannounced visits. M~nltors shall record ~vents and conditions during site visits. Monitors shall observe and report. findings only. Each district shall include in the six-year pla11 and ~nnual .sc:h0ol .improveillcnt pL;.n:s appropriate objectives to c1ch.ieve c0mpliance with each court order related to the Agreement. The ADE shall monitor the six-yec1r plans and ;innual school improvemC'nt plans t0 dE::t~rmine prouress toward uchieving educatio11al equity. District plans should provide evidence of 88w.pliur.ce with co~rt orders and 3 process to ascertain progress . -  'The AD\"E shall identify relevant dat.a necessary to formulate conclusions and recommendations. Data should provide: 1. Evidence that policies, pro~edures, rules and regulations ar~ developed and implemented to facilitate desegregation. 2. Evidence that plans r~lated to reducing achievement disparity between black and non-black students are progressively successful. 3. Ev.5.dencc that student assignments to schools, classes and pr,)grams at each organ.izat ional }eve) are made wit.hout b :i.as. 4. Evidence that staff development days authorized as a result of the Agreement are used to facilitate the desegregation process. S. Evidence that tr2vel time to and from schools is not disproportionate among black and non-blc:1.ck stude-nc.s and the percent~ge of black students transported for desegregation is not significantly greater than the pe-r\u0026lt;::entr.19e of non-black students transported for d~segregation. G. Evidence that guidance and counseling is designed to meet the needs of a diverse student population. 7. Evidence of internal procedures for ensuring that materials for appraising or counseling students are nun-discriminatory. 8. EvidencP. that curricular content and instructional strategies are utilized to meet the diverse needs of the student population served. 9. Evidence that personnel is recruited, employed and ::1ssigned in a manner to meet the goals of a desegregating .school district. 10. Evidence that procedures related to extracurricula and (:o~urricula activities are developed and implemented to identify and eliminate conditions that result in participation that is disproportionate to the student population. 11. Evidence of diverse representation on appointed distr:i ctwide and school-bilsed commi tteP.s. 12. Evidence of efforts to ensure that parent attendance aL school functions is not disproportionate to the student population. 4 I i 1, -'-- 1). E~idence of success related to Majority to Minority 't \"t alJsf er s. Evidence that magnet schools arc an effective lnlerdi~trict remedy for racial balance. The collection of data shall include at least the fol1owing: A. Enrollment/.Att.endanc1:: 1. Enrollm~nt by race, gender, school, grade, transported, nontransported and instructional programs. 2. Enrollment by rnce, gender, grade, transported, nontransported and instructional program fo~ each magnet school. ]. Nwnber of non promotes by race, gender, grade, school, teacher, transported and nontransported. B. Test Data 1. 2. 3. ArY.ansas Minimum Performance Test results by race, gender, grade, school and socioeconomic status (SES). Nwnber of eighth grade1.s failing to attain mastery after the first, second and third administration of test by race, gender, SES and school. Nw11ber of eighth graders that are non promotes for failing to a t tain mastery after third administration of test by race, gender, SES and school. 4. Metropolitan Achievement Test - 6th Edition or other national normed tests as may be adopted by the :Z..DE. Results should be given by race, gender, grade, school, SES and teacher. 5. Number of 11th and 12th graders by race, gender, school and guidance counselor who take the PSAT, ShT or ACT. c.. .Staff 1. Number of Full Time Equivalent (F.T.E.) classroom teacl1ers by race, gender, school, years of experience. 2. Number of F.T.E. school-based administrators by job category, race, gender, school, years of experience . 3. Nwnber of F.T.E. counselors by race, gender, school, years of experience. s - ~ . 5. 6. 7. ,... 0. Numher of F. 'J'. E . ):inderg3.rtP.n teachers by race, 0ender, school, years of experience. Number of F.T.E. lib.ra:cians by race, gender, school, years of experience. Number of F.T.E. department. hcr1ds by race, gender, scliool, years of experience. Number of F.T.E. secretaries by race, gender, school, years of experience. N'.m,ber :::,f F.T.E. centr:11 office positions by job ~ategory, race, gender, school, years of experience. D. Policy and Program Information 1. Administrative chart indicates titles, names, responsibilities and reporting responsibilities. 2. ?o}icies and regulations related to student entrance 3nd exit criteria for course offerings and special st.ate funded programs including: ~- Magnet Schools h. Comperisa tor:,, Educ:a tion c. Majority to Minority Transfers d. Transportation 3. Student assig1ment policies, rules and regulations. 4. District policies, rules, regulations and written administrative directives governing: a. Class Assignment h. Testing c. Guidance and Counseling d. Extracurricular Activities e. Student Rights and Responsibilities f. Library Usage g. Student Records 5. Copir.s of current negotiated agreements with all employee groups. E. Budget Information Quarterly (or monthly, if available) financial reports including: 1. Cost of operating all elementary programs, junior high scl1ool programs, and high school programs by funding source (local/regular state/federal and special state dese...gregation funding). 6 2. Transportation cost and funding source. 3. ~11 legal fees reported by type of services. 4. Compensa~ory Education Program cost 5. Magnet school cost F. Student Discipline 1. Number of discipline referrals by school and teacher reported by race, gender, grade, subject and teachers' years of experience. 2. Student suspensions, exclusions and expulsions according to type of infractions, length of punishment by race, gender, school and teacher. G. Perceptional Data Results of survey to ascertain perception toward school quality, school services, district and buildin~ leadership, special state funded programs and educational equity summarized by race, gender, attendance zone, sc:hou1 and grade. H. Majority to Minority Transfer Number and percentage of students by gender, race, school and grade level, by sending and rE:ceiving district. ;..nalysis of data shall bE: conducted by appropriate ADE personnel ond other persons as designated by the ADE director. Additional data may be required of the districts, a~ deemed necessary by the ADE for the monitoring reports. A schedule for submitting the data shall be established by the ADE. Si!lce the monitor .i.ng is massive antl encompassir,g, thE: ADE shall establish monitoring priorities as follows: 1. Programs and services supported by special state desegregation funding including compensatory education, magnet schools, majority to minority transfers and related transportation. 2. Low achieving schools. 3. Schools with new principals. 4. Any situation identified as unusual. 5. Expanded monitoring as resources permit. 7 1t.0ni t.oring ncti vi ties shall be coordinated by the ADE Equity Assistance Center. The site visitation will be conducted by a t.cam of no less than two members and no more than five members. At least one te.am member will be an education professional from th~ J\u0026gt;.DE. The Equity Assistance Ct:?nter may conduct random monitoring to ensure the quality of monitoring procedures. Since data analysis is essential to the monitoring process, the state requests the Court to instruct the three districts to provide the ADE all data necessary to implement the monitoring acti ,1i ties. REPORTING The ADF. sr1al l provide a written report to the parties and the Court on a semiannual schedule initially. These initial reports will be on FeDruary 1 (or nearest workday) and July 15 (or 11earest workday) of each year or as directed by the Court. The Equity Assistance Center shall be responsible for the written monitoring reports. TI1e written report shall contain a description of the progress of the desegregation process in Pulaski County. Programs and serviccs receiving special state funding resulting from Little Rock School District vs. Pulaski County Special School District, et al., No. LR-C-82-866 shall receive reporting priority. The reports will contain both financial and program information. The Ji.DE Desegregation Assistance Team shall provide technical assistance and support as necessary to implement monitoring and reporting responsibilities. Current team members are: Administration Emma Bass Sterling Ingram Robert-. Shaver Gifted/Talented Martha Bass Federal Programs Clearence Lovell Elizabeth Gaston Jncentive Schools C;uolyn Elliott Glenda Peyton Marie Parker Ear)y Childhood TBA Curriculum Lynda White Horace Snith Janita Hoskyn 3 Student Services Brenda Matthews Ma1g.ie l'o,;ell Sue Swenson Sue McKenzie Special Education Diane Sydoriak Renny Abraham Staff Development C'-ayle Teal Jackie Dedman 2taff Attornev Sharon Streett Vocational Education Jean iJcEn':.ire MEMORANDUM OF UNDERSTANDING WHEREAS, Section II.E of the Pulaski County School Desegregation Case Settlement Agreement (as revised September 28, 1989) (hereinafter the 11 Settlement Agreement 11 ) between the Little Rock School District ( 11 LRSD 11 ) and the State of Arkansas provides that the State of Arkansas , acting primarily through the Arkansas Department of Education ( \"ADE \" ) will continue to pay its share of the Magnet School operational costs and transportation costs for the six original magnet schools (Carver, Williams, Gibbs , Booker , Mann and Parkview) ; and WHEREAS, Section II .D of the Settlement Agreement limits the State ' s magnet funding obligation so that the State is required t o provide magnet funding only to the original six magnet schools; and WHEREAS, the total seating capacity for the six original magnet schools in 1989 was 4,065 seats ; and WHEREAS, Section II.D of the Settlement Agreement can be read as limiting the State's total magnet funding obligation to 4 , 065 seats or as limiting the State's magnet funding obligation on a school-by-school basis to the 1989 capacity at each of the six original magnet schools ; and WHEREAS, pursuant to Plan, LRSD reorganized its includes middle schools; and its Revised Desegregation and Education schools into a new configuration whi ch WHEREAS , the Magnet Review Committee requested and won the District Court ' s approval to change the grade structure of the interdistrict magnet schools and the number of seats within five of the six schools ; and WHEREAS, a consequence of LRSD' s change to the middle school configuration is that some of the six original magnet schools have a greater capacity than they did at the time of the 1989 Settlement Agreement and some of those schools have a smaller capacity than t hey did at the time of the 1989 Settlement Agreement ; and WHEREAS, ADE has filed an objection with the District Court , in which it asserts that the State ' s magnet school funding obligat ions are limited, on a school-by-school basis, to its share of funding for students up to the 1989 seating capacity at each of the six original magnet schools; and WHEREAS, LRSD has filed a motion with the Court requesting , among other things, that the Settlement Agreement be modified so as to increase the State's magnet school funding obligation beyond its s hare of funding for a total of 4,065 students for all six original magnet schools; - in the alternative, LRSD's motion requested that the Settlement Agreement be modified so as to increase the number of magnet seats funded by the State for certain individual magnet schools; and EX HI B l:T 5 WHEREAS, the LRSD and the State wish to amicably resolv~ their differences concerning the effect of LRSD ' s restructuring on the State ' s obligation to fund the six original magnet schools . THEREFORE , it is understood and agreed between ADE (on behalf of the State) and the LRSD as follows: LRSD shall withdraw its motion to modify the Settlement Agreement to the extent it seeks an increase, beyond a total of 4,065 seats, of the State ' s obligation to fund the six original magnet schools, and LRSD will not take an appeal from the District Court ' s order denying its motion to so increase the State's obligation. ADE shall withdraw its objection to District Court approval of a change in the number of seats proportionately funded by ADE at S of the 6 original magnet schools, provided that ADE will not be required to fund more than a total of 4,065 seats for all 6 original magnet schools collectively. The withdrawal of LRSD ' s and ADE's motions and objections is based upon their agreement that the restructuring of the LRSD's schools was intended , as part of LRSD's Revised Desegregation Plan, to enhance the quality of education in the LRSD and was not instituted solely as a means to increase the State's magnet school funding obligations. Nothing in this agreement should be construed, interpreted or asserted as a waiver of LRSD's or the ADE ' s ability to seek future modifications of the Settlement Agreement in regards to the seating capacities or funding of the magnet schools, or the LRSD's or ADE's right to object to proposed changes in seating capacities or funding obligations for the magnet schools, based upon factors other than the LRSD's restructuring of its schools under its Revised Desegregation Plan. ff Executed this!:!_ day of June, 2000. ARKANSAS DEPARTMENT OF EDUCATION LITTLE ROCK SCHOOL DISTRICT By=~--------------- Christopher Heller 2 AGREEMENT BETWEEN THE LITTLE ROCK SCHOOL DISTRJCT AND THE STATE OF ARKANSAS This Agreement is by and between the Little Rock School Di:strict (\"LRSD\"), and the St ate of Arkansas (the ''State\"), by and through the State Board of Education, the Arkansas Department of Education and Governor Jvfike Huckabee. LRSD and the State shall collectively be referred to as the Parties. RECITALS WHEREAS, LRSD and the Staie are parties to the l 989 Settlement Agreement in the Pulaski County School Desegregation Case, U.S.D C. No. CIV-LR-82-866, (\"] 989 Settlement Agreement\"); WHEREAS, the 1989 Settlement Agreement imposes cen ain obligations on the State bur cont ains no provision st ating when those obligations end; WHEREAS, LRSD will seek to be declared unit ary and released from federal court monit oring and supervision but is concerned that if it is decl ared unitary the State may seek to 1erminat e it s obligations under the J 989 Settlement Agreement; \\\\THEREAS, pursuant to Section VJ .B. of the 1989 Settlement Agr eement, th e State has advanced loans to the LRSD in the cumulative principal amount of $20,000,000.00 (twemy milli on dollars), and there is present ly a dispu1e between the State and the LRSD as to whether tho se loans ,:vill be fo rgiven or must be repaid pursuant to Section VI.B.(6) of the ] 989 Settlement Agreement; WHEREAS, under the S1a1e's current funding formula fon public school distric1s, LRSD's per pupil revenue affects the total amount of fonding whi ch 1he State must distribute through the fo rmula; WHEREAS, how LRSD sm.,ctures its bond debt affects LfSD's per pupil revenue; Page J of 8 EX HIB IT b WHEREAS, the State wants LRSD to S1rucrure its bond debt' so as to minimize the financial impact on the State; WHEREFORE, the Parties hereby agree to the following te~s and conditions: AGREEMENTS 1. LRSD agrees to pursue complete unitary status and release from court supervision, in good I faith and using its best efforts, until such complete relief has been obtained or until the tennination of this Agreement, whichever comes first. 2. LRSD agrees to accelerate the sale of its bonds so that the required annual debt service payments will be 11. 8 million dollars beginning with the 2002 calendar year. The State Board of Education does hereby approve the LRSD's bond application as submitted on February )9, 2001. 3 . ln order to facilitate and encourage LRSD's efforts 10 attain complete unitary status and release from court supervision, the State agrees that it will not seek tci modify or terminate any of the State's obligations to the LRSD under the 1989 Settlement Agreement (including any reduction of the payments to LRSD resulting from the Settlement Agreement or court decisions enforcing the Agreement) from the date of execution of this Agreement up lO arid including June 1, 2008. This covenant shall remain in full force and effect (unless this Agreement terminates pursuant to pangraph 6 of this Agreement) regardless of whether the LRSD, the Pulaskj County Special School District, and/or the North Litile Rock School District obtain panial or complete unitary status and release from court supervision. 3 . l Provided, however, that this Agreement does 1101 li~it, and should not be construed or interpreted as limiting in any way, the State\\ability to seek modification or tennination of any of its obligations under the 1989 Setllement Agreement (including P age 2 of 8 - as follows: 4_] The State will forgive and release the LRSD from any obligation to repay the first $15,000,000.00 (fifteen mmion dollars) in loans advanced to the LRSD pursuant to Section YI.B. of the 1989 Settlement Agreement. ,Any and al1 funds in the joint escrow account established by the State and the LRSD pursuant to Section VI.B of i the 1989 Settlement Agreement will be released to the LRSD as soon as practicable. 4.2 In addition, with respect to the remaining $5,000,000_00 (five million dollars) in loans advanced to the LRSD pursuant to Section Vl_B. of the 1989 Settlement Agreement, the State will forgive and release the LRSD from any obligation to repay these loans if the LRSD obtains a final order granting it complete unitary status and release from federal court supervision on or before July l, 2004. Subject to the provisions of paragraph 4 .3 of this Agreement, the LRSD is rel~eved of its obligation to make payments of principal or interest on these Joans irno a joint escrow account established by 1he State and the LRSD pursuant to Section  Vl.B of the l 989 Settlement Agreement. 4-3 For puJ7Joses of paragraph 4.2, the phrase \"final order granting it complete unitary status and release from federal court supervision\" shall mean the entry of a final, appealable order of the United States District Court for the Eastern District of Arkansas granting the LRSD complete unitary status and release from federal court supervision as of July 1, 2004. Jn the event an ord'er granting the LRSD complete unitary status and release from federal court super,vi sion as of July 1, 2004 is not entered by the District Court, or is entered by the District Coun but is appealed and Page 4 of 8 subsequently reversed in whole or in part, the LRSD shall have the unconditional obligation to repay the loans referenced in paragraph 4.2 on a payment schedule of interest and principal as set forth in Sections YI.B(l) and (3) of the 1989 Settlement Agreement, and to immediately pay to the St.ate the cuinulative amount of any and all interest and principal payments that would have been due on the loans referenced in paragraph 4.2_ 4.4 The Parties shal1 promptly and jointly petition the Court for any modification of Section VJ.B. of the 1989 Settlement Agreement fhat is necessary so as to fully effectuate and make binding the terms of paragraphs 4 through 43 of this Agreement, and shall take such further action as may be necessary to obtain such a modification, including but not limi1 ed to appealing any adverse decision or ruling of the District Court. 4.5 In the event this Agreement is tenninated pursuant to paragraph 6 of this Agreement, the Panies shall negotiate in good faith in an effort to arrive at a mutually agreeable re solution of any disputes concerning the loans advanced to the LRSD pursuant to Section VI.B of the 1989 Setllement Agreement. ln the event the Parties cannot agree to such a resolution, the Parties may take whatever action they deem necessary and appropria1e with regard to said loans, including but not limited to sedung appropriate relief fi-om the Court. In the event such1relief is sought from the Court, neither the terms of this Agreement, nor any facts or statements of the panies related to its negotiation or execution. shall be construed or offered as evidence of any admission against interest or waiver of any kind on the part of the State or the LRSD Page 5 of 8 .. 4 .6 However, in the event this entire Agreement is not terminated pursuant to paragraph 6 of this Agreement, but the Coun approval referenced in paragraph 4.4 of this Agreement is nonetheless not obtained, the provisions of paragraphs 4 through 4 .6 of this Agreement shall be null and void but severable from the remainder of this Agreement, to the effect that all other promises and ~bligations of the Panies shal1 I remain in full force and effect. In such an event, the ,Parties shall negotiate in good faith in an effort to arrive at a mutually agreeable resolution of any disputes concerning the loans advanced to the LRSD pursuant to Section Vl.B of the 1989 Settlement Agreement and, in the event the Parties cannot agree to such a resolution, the Panies may take whatever action they deem necessary and appropriate with regard to said loans, including but not limited to seeking appropriate reljeffrom the Coun. )n the event such relief is sought from the Court, neither the terms oftrus Agreement, nor any facts or statements of the Parties related to its negotiation or execution, shall be construed or offered as evidence of any admission against interest or waiver of any kind on the part of the State or the LRSD. 5. The effective date of this Agreement shall be the date of execu1ion. 6. This Agreement will 1erminate and the State will have no further obligations under this Agreement if fhe LRSD has failed to apply to the District Court for complete unitary status and release from couT1 supervision by June 30, 2004 . 7. The Parties agree that this Agreement shall be filed m the Pulaski County School Desegregation Case, U.S.D.C. No. CJV-LR-82-866, and that the United States District Coun shall have jurisdiction to enforce this Agreement, to resolve disputes between the Parties arising out oft his Page 6 of 8 - Agreement and to hear any challenge to the legaJiry of this Agreement. 8. This Agreement expresses the entire agreement of the parties and may not be modified or altered except by a writing executed by the authorized representatives of the LRSD and the State. 1t is speci:fically contemplated that this Agreement may be modified or amended, with the approval of the LRSD and the State, after further consultation and discussion=with the Joshua Jnten,enors. I 9. AJJ covenants, conditions, agreements and undertakings contained herein shall inure to the benefit of and be binding upon the respective legal successors in interest and assigns of the parties. 10. This Agreement is entered into as of the ~ay of Ma~ch, 2001, by the undersigned officers of the Little Rock School District and the Arkansas Department of Education, each of whom is authorized to execute this Agreement on behalf of the Parties. Page 7 of 8 \"~ / , , / 'l n\" , ~ nl'l.1 f 'T\u0026gt;V / T'\\V \" l l\"\\ r- A\"\"-, LITTI.,E ROCK SCHOOL DlSTRJCT BY: AR.KANSAS DEPARfMENT OF EDUCATION BY: / Page 8 of 8    This project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. 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