{"response":{"docs":[{"id":"ugabma_wwlaw_wwlaw-0037","title":"W. W. Law Tribute Memorial","collection_id":"ugabma_wwlaw","collection_title":"W. W. Law Collection","dcterms_contributor":null,"dcterms_spatial":["United States, Georgia, Chatham County, Savannah, 32.08354, -81.09983"],"dcterms_creator":["York, Lisa","Kuhn, Cliff"],"dc_date":["2002-08-07"],"dcterms_description":["Recording of a memorial service held in tribute to Savannah civil rights and civic leader W. W. 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While she was aware of some of the tensions of the civil rights movement, she did not participate in protests or boycotts; instead, she tried to convince her peers that her work did not benefit the white shopkeeper who leased her space. Waddell become more involved in civic activity later in life, when she helped found the Ralph Mark Gilbert Civil Rights Museum and became an active member of her church. 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Waddell's enthusiasm for her work helped her build a successful career, and at the time of the interview, in August 2002, she had only recently retired. While she was aware of some of the tensions of the civil rights movement, she did not participate in protests or boycotts; instead, she tried to convince her peers that her work did not benefit the white shopkeeper who leased her space. Waddell become more involved in civic activity later in life, when she helped found the Ralph Mark Gilbert Civil Rights Museum and became an active member of her church. This interview provides a portrait of a woman carving out a space for herself in segregated Savannah.","Title from menu page (viewed on December 20, 2007).","Interview participants: Walter Durham, interviewee; Bob Gilgor, interviewer.","Duration: 02:11:25.","This electronic edition is part of the UNC-CH digital library, Documenting the American South. It is a part of the collection Oral histories of the American South.","Text encoded by Mike Millner. Sound recordings digitized by Aaron Smithers.","The Civil Rights Digital Library received support from a National Leadership Grant for Libraries awarded to the University of Georgia by the Institute of Museum and Library Services for the aggregation and enhancement of partner metadata."],"dc_format":null,"dcterms_identifier":null,"dcterms_language":["eng"],"dcterms_publisher":null,"dc_relation":["Forms part of Oral histories of the American South collection."],"dc_right":["http://rightsstatements.org/vocab/InC/1.0/"],"dcterms_is_part_of":null,"dcterms_subject":["Women tailors--Georgia--Savannah","African American businesspeople--Georgia--Savannah","African Americans--Segregation--Georgia--Savannah","Savannah (Ga.)--Race relations","Savannah (Ga.)--Economic conditions"],"dcterms_title":["Oral history interview with Laura B. 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Central Arkansas Library System."],"dc_relation":null,"dc_right":["http://rightsstatements.org/vocab/InC-EDU/1.0/"],"dcterms_is_part_of":["Office of Desegregation Monitoring records (BC.MSS.08.37)","History of Segregation and Integration of Arkansas's Educational System"],"dcterms_subject":["Little Rock (Ark.)--History--21st Century","Little Rock School District","Education--Arkansas","School districts--Arkansas--Pulaski County","Educational law and legislation","Education--Evaluation","School administrators"],"dcterms_title":["Compliance court filings"],"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/323"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":null,"dcterms_medium":["documents (object genre)"],"dcterms_extent":null,"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\n \n\n\n\n\n\n\n\n  \n\n\n   \n\n   \n\n\n   \n\n\n   \n\n\n\n\n   \n\n\n\n\n   \n\n\n\n\n\n\n\n\n\n\n   \n\n   \n\n \n\n\n   \n\n   \n\n  \n\n\n   \n\n  \n\n \n\n\n   \n\n  \n\n \n\n\n   \n\n  \n\n  \n\nIN 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 RECEIVED MRS. LORENE JOSHUA, ET AL JUL 5\" - 2002 KATHERINE KNIGHT, ET AL desegregation monitoring EASTERN DISTRICT ARKANSAS AUG 0 2 2002 JAMEa w By: z* PLAINTIFF DEFENDANTS INTERVENORS INTERVENORS ORDER 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 LRSDs Motion to Strike. After hearing the position of the parties counsel regarding the matter, the Court determined that the Plaintiff would have unitl 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 5:00 p.m. in which to respond thereto IT IS SO ORDERED thi: day of ,2002. UNITED STATES DISTRICT JUDGE THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE WIT 68 AND/OR 7' ON. RCP 6 2 RECEIVFO IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION ^UG 1 9 2*502 OFFICE OF OeSGQRSGATlOH UOjiiTDiyiMI LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ET AL received MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL DEFENDANTS INTERVENORS INTERVENORS PLAINTIFFS 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 LRSDs 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 C. Norman 59 1-25 Complaints about Norman by the BCC occurred during the 2001-02 school year (See Norman, p. 71-72). 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 C. Norman 61 1-20 Complaints about Rutherford occurred during the 2001-02 school year (See testimony of Avis and D.J. Thames). Same as above. C. Norman 62 1-25 C. Norman 63 1-25 C. Norman 64 1-21 C. Norman 65 11-25 C. Norman 66 1-25 BCCs support of Ross and Klais occurrred during the 2001-02 school year. BCC action against Norman and disciplinary action against Rutherford occurred during the 2001-02 school year. Rutherford disciplinary action occurred during 2001-02 school year. Teacher refusal to give recommendation occurred during 2001-02 school year (See testimony of Chris Payne). Same as above. C. Norman 70 17-25 C. Norman 71 1-25 BCC action against Mr. Norman occurred during the 2001-02 school year. Same as above. C. Norman 72 1-18 C. Norman 91 15-25 C. Norman 92 1-14 C. Norman 92 8-23 C. Norman 93 1-14 P. Watson 105 10-11 P. Watson no 14-25 P. Watson 122 11-19 M. Faucette 196 12-25 Same as above. Cross concerning Rutherford.' Cross concerning BCC.^ Redirect concerning Rutherford. Concerns Chris Payne and 2001-02 school year. Concerns 2001-02 school year. Concerns 2002-03 school year. Concerns 2001-02 school year (see p. 105) Concerns 2001-02 school year (see p. 197, line 13) ^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. ^See Footnote 1. 2WITNESS 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 (see p. 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. J. Mercer 380 1-25 Same as above. J. Mercer 381 1-25 Same as above. J. Mercer 382 1-25 Same as above. ^See Footnote 1. 3WITNESS PAGE LINES EXPLANATION J. Mercer 383 1-5 Same as above. J. Mercer 394 24-25 Concerns his graduation in 2002. J. Mercer 395 1-10 Same as above. J. Mercer 395 11-25 Redirect regarding Brooks. J. Mercer 396 1-9 Same as above. J. Mercer 398 8-25 Re-cross regarding Brooks.** J. Mercer 399 1-9 Same as above. C. Payne 400 15-25 Concerns his senior year, 2001-02. C. Payne 401 1-25 Same as above. C. Payne 402 1-25 Same as above. C. Payne 403 1-25 Same as above. C. Payne 404 1-25 Same as above. C. Payne 405 1-25 Same as above. C. Payne 406 1-25 Same as above. C. Payne 407 1-25 Same as above. C. Payne 408 1-10 Same as above. C. Payne 408 11-25 Cross concerning his senior year, 2001- 02.5 C. Payne 409 1-25 Same as above. C. Payne 410 1-25 Same as above. C. Payne 411 1-25 Same as above. C. Payne 412 1-25 Same as above. C. Payne 413 1-25 Same as above. C. Payne 414 1-5 Same as above. C. Payne 414 6-25 Redirect concerning his senior year, 2001- 02. 4 See Footnote 1. ^See Footnote 1. 4WITNESS PAGE LINES EXPLANATION C. Payne 415 1-25 Same as above. C. Payne 416 10-13 Same as above. D. Thames 418 15-25 Concerns his senior year, 2001-02. D. Thames 419 1-25 Same as above. D. Thames 420 1-25 Same as above. D. Thames 421 1-25 Same as above. D. Thames 422 1-25 Same as above. D. Thames 423 1-25 Same as above. D. Thames 424 1-25 Same as above. D. Thames 425 1-25 Same as above. D. Thames 428 12-25 Same as above. D. Thames 429 1-17 Same as above. D. Thames 434 9-25 Cross regarding Beta Club and National Honor Society. D. Thames 435 1-9 Same as above. D. Thames 436 10-25 Cross regarding Pickering. 7 D. Thames 437 1-2 Same as above. D. Thames 439 1-5 Redirect regarding Beta Club. P. Mercer 453 20-25 Cross regarding Brooks. P. Mercer 454 1-25 Same as above. P. Mercer 455 1-25 Same as above. P. Mercer 456 1-25 Same as above. P. Mercer 457 1-25 Same as above. P. Mercer 458 1-25 Same as above. See Footnote 1. 7, See Footnote 1. See Footnote 1. This cross relates to Justin Mercers testimony. Pam Mercer only discussed the issue generally without specific reference to Brooks, and Plaintiff has not designated that testimony to be stricken. 5WITNESS 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 (see p. 527). J. Carter 501 19-24 Same as above. J. Carter 527 4-11 Cross regarding staff cuts. 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. 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: /I John C. Fendley, Jr. + See Footnote 1. 6CERTIFICATE 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 e. C. Fendley, Jr. I L F\n\\HOME\\FENDLEY\\LRSD 2001\\des-unitary-mot-strikc-designalions.wpd 7 V FILED is\nhic!' COUR i IN THE UNITED STATES DISTRICT COLDIT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION u.g. Di\nT'l AUG 1 9 2002 JAM vv. RK Ev T ,.\",P\u0026gt;'^\\NSAE R LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO, 4:82CV00866 WW/TTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. LET AL RECEIVED DEFEND.ANTS NIRS. LORENE JOSHUA, ET AL AUG 1 9 2002 INTERVENORS KATHERINE KNIGHT, ET .AL OFFICE OF DESEGREGATION MONITORING INTERVENORS JOSHUA INTERVENORS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN OPPOSITION TO THE LRSDS REQUEST FOR UNITARY STATUS REGARDING THE PLAN SECTIONS INTRODUCTION This case is before the Court upon the LRSDs motion to be released from Court\nsuperxdsion 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 1989 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 Inten-'enors entered into a Revised Desegregation and Education Plan before the Court - the Revised Desegregation and Education Plan. The Revised Plan w^as intended to A:''JOSHZ-A.OPP -1-t I implement the orisinai remedy of school desegregation ordered by the Court. The Revised 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 anticipated that upon compliance the school District would petition, with approval, of the Joshua Intervenors, the Court for release of the District from Court supervision. The predicate for release was substantial compliance with commitments set forth therein and otherwise 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 ofthe 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 Joshuas 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 15, 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 July, 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. Ultimately, these proceedings were scheduled for Januaiy-', 2002 but they were delayed upon motion of Joshua. 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.i _ I 7 Wilson scheduled and held hearings during July. 2002 upon the objections raised by Joshua the Compliance Report of March 15, 2001. After the hearings, the Court required the parties to submit contemporaneous findings of fact and conclusions of law and/or statements in further u of the parties respective positions to the Coun by 11:00 a.m., August 19, 2002. This filing repr nts the Joshua Intervenors compliance with the Courts directive. It also summarizes the rebuttal evidence presented by Joshua through Ms. Ann Marshall. The : -ovisions of the Revised Desegregation and Education Plan of 1998 which are now- before the 2 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 secti idress, among other topics, the obligation to take steps to increase participation of qualified At. 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, pre v: on of guidance counseling services in a nondiscriminatory manner and more equity in academic h ..^rs, a.wards and scholarships. The Joshua Intervenors emphasize the importance of giving attention to the overall picture which it portrays regarding the Systems good faith and other matters. Good faith requires conscious intent by the school District to take actions which promote the ultimate j-.\nCTve^ of the Revised Desegregation and Education Plan. We submit that the ultimate objecti \\ es of the Revised Desegregation and Education Plan necessarily include elimination ofthe vestiges of racial discrimination and the replacement of those vestiges with policies, programs, practices and procedures w'hich do not lead to resegregation. Joshua submits that the actions of the school district, a xm in the proceedings before Judge Wright and Judge Wilson, demonstrated that the District not acted in good faith in meeting the obligations which are set forth in the A:'JOSffUA.OPP4 _ I January, 1998 Revised Desegregation and Education Plan. 1. THE TESTIMONY OF ODM DIRECTOR ANN MARSHALL REBUTS THE LRSDS POSITION REGARDING EVALUATIONS AND OTHER ELEMENTS OF PLAN IMPLEMENTATION Ms. Marshall testified that when the March 15, 2001 Report was presented, the evaluation documents were not available as represented 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. Marshal! about the LRSDs 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 make 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 37, 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 36] She also stated that the ODM did not any evaluations of programs on behalf of the LRSD. [Tr. at 23] 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:yOSHUA.OPP -4-I to determine their efficacy in meeting plan objectives. Joshua now proceeds to address the areas on which the Court allowed the development of evidence during 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\nand awards which the District has received Itnown as the Arkansas Quality Award, It does not in the body of the report address the objective of remedying the 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 1. The Districts 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 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)\n[Tr. at 49 (Norman)]\n[Tr. at 560 (J. Mosby)] However, in approximately Januaiy' 2001, the LRSD revised the criteria so that thereafter there would be, basically, a free choice A:UOSHUA.OPP I assignment into advanced and enriched courses. [Tr. at 86 (Norman)\n[Tr. at 473, 498 (Caner)] 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 DCC 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 .American 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 of identifying and encouraging increasing percentages of African .American students. 4. Policy IHBB is very general. Policy EKC does not address the issue of race. Policy DCF 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 program 5. The 2001 Report indicates that Policy DCF 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-I including ai 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 measurem.ent barometers. 6. The 2001. Report content on pp. 30-31 does not demonstrate how African American students are benefitted by these policies 7. The Interim Report identifies Administrative Regulation IHCCR as being written to promote the percentage of African American 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 21 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 will 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 derermined. 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. 43] Moreover, the District did not present the number of minority students earning a score 19\" on the A:'JOSHUA.OPPI ACT as promised in the Interim Report. The average scores' of racial groups are presented, but th number of AA students who score 19\" or above is not presented, [e.g. 4S-49j. 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-AP courses in middle and high schools and the University Studies Program for one year only. [e.g. 44-47] 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, 2.37\nsee 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 extent to which .African American males students fare within the District. 12. When the District did not present data, regarding Advanced students it prevented the parties from malting judgments regarding the extent to which African .American students were being compared to other students. Being at or above proficient does not disclose the relative relationship between 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 quartile 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 .American students without use of this quality indicator.  [e.g. p. 104-105, .4 :'JOSHUA. OPP -8- 133, 144] 13 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\ncurriculum for middle schools v/as required because the District changed from a six-three-three emto a five-three-four system in 1997 The purported new curriculum was neither developed or intended 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. Theie s no showing that it has increased African .American participation in AP courses. 14. The Un, iBS Program at Hall High Schoo! 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! To be eligible for enrollment strong students\nust have either a minimum grade point average of 2.5 on half of their college preparatoiy' course / ' a minimum grade point average of 3.0\nor 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 of 21 on the ACT to be white or .Asian. Black students are almost four numbers below that score. Moreover, the District did not present any charts which showed the number of studen' a.t Hall who made minimum grade point averages of 2.5 on at least half of their college preparatory irses nor did it enumerate in a chan the number by race of strong students who have the capacity ot doing college work. The University Studies Program, therefore. tended to favor the stronger students with the better grades, the higher test score averages with means which is another wav of sa A g that it favored white students! A:\\JOSHUA.OPP -9-15. Page 15 cf the 2001 Report reflects the enrollment 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 panicipation. We note that now that the program includes most of Halls 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 538-541(Ross)] 17. 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. Identifydng such students would involve use of archival data in Little Rock that would, have shown 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 the view's of principals and curriculum specialists A:^JOSHUA.OPP -10-in the District who have had experience with African American students and white students who are at lower or higher ends 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 deciding which .African American students were, qualified, which were likely to benefit. For students with test scores at the lower end on state mandated 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 ensurethe term we use in educationalpsychology is scaffoldingmeaning support, because the history that that student who is at basic has had. 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 miles\nyou 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 qualified can benefit. Examples -would be Saturday classes, -which are used, in a lot of districts, extended day, peer coaching, smaller class sizes, computer -assisted, instruction that gives exti'a support, programs with families where parents are not taught to tutor, but parents are taught hoyv to help their children get the work done at. home, courses on how to study. There'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 levels of state test courses into advanced placement courses without the kinds of programs he described. [Tr. A:J0SffU4.0PP -11-1 at 549] 20. The approach described by Dr. Ross grows out ofthe provision in Section 2.6 of the Plan for promoting participation of qualified .African American students in advanced and enriched courses and the provision of Section 2.6.2 of the Plan which requires implementaiion of programs to assist these students in being successful in the enriched and advanced courses. The paragraphs which follow show: (a) the activities 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-AP and AP classes which allow any student regardless of test scores and. prior performance to select such classes., without an individualized consideration of the students ability to benefit\nand (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 next 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.]\n[Tr. at 186-89 (Faucette)] 22. Ms. Patricia Watson has served as a guidance counselor in the LRSD for approximate!}' 28 years, 23 years at Central and 5 years at Hall. She was the lead counselor at Hall during the term ofthe Plan. [Tr. at 100] She did not recall any specific training program each year of the Revised A:'JOSmJA.OPP -12-t Desegregarion and Education Plan which was designed to train counselors in encouraging participation 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 panicipation of African Americans in Pre-AP and AP classes. [Tr. at 103-04] 23 2j. When the subject matter of encouraging participation of African American students in advanced and enriched courses was raised by a LRSD administrator, the presentation was brief and pro forma. [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 ofPre-AP  and AP to encompass the prior categories of AP, honors and enriched. [Tr. at. 376, 11/20/01 (Lesley)\nCX. 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 Districts plan is to increase the number of AP courses and Pre-AP 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. 38 of the March, 2001 Report, the greatest numerical increase of -African .American pupils in .AP courses, 154, occurred 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 means that the proportion of white students enrolled in AT courses actually increased. The chart on p. 3 8 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 March, 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\nTr. at 49 (Norman)\nTr. 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)\nTr. at 473, 498 (Carter)] 27. In 2000-01, 65% of the enrollment in AP courses was white [Tr. at 747 (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 R.ANGE OF SUPPORT PROGRAM (SCAFFOLDING) IS .AN ESSENTIAL ELEMENT OF .AN INITIATIVE WHiCL PLACES POORLYPERFORMING STUDENTS IN ADVANCED AND ENRICHED COURSES. See par. 18. LRSD WRITTEN STANDARDS -ARE TO THE SAVIE EFFECT [CX. 719, Policy IHBD.A IHBDA-R, IHBD.A-R2]. However, LRSDs 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:\\JOSHUA.OPP -14-f Superintendent for Instruction and Bonnie Lesley and Ms. Sadie Mitchell, Associate Superintendent for School Services, could not provide concrete information on the implementation of Student Academic Improvement Plans (SALPs), or other interventions for students requiring additional assistance to satisfy learning standards. [Tr. 8-1-01, at 609, 18 to 611, 23 (Mitchell)\nat 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-,AP and AP courses during the term of the Revised Plan, during the most recent hearing. (c) The support programs actually available for Pre-AP 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)\n491-92, 523, 524 (J. Carter), 563-68 (J. Mosby)\n743-44 (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 Districts 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 of barriers to participation in advanced and enriched courses (and extracurricular activities). [Tr. at 130 (Babbs)]\n.4\n'JOSHUA. OPP -15-1 (See also Court Ex. 544, CX. Ex. 869 (March 2000 Report) at 1-2]. 30. 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)\nThe Associate Superintendents of Administrative Services, Instruction, Operations, and School Seiwices and the Special Assistant to the Superintendent comprise the \"Compliance and quality Assurance Committee.  The committee has responsibility for the development, implementation, oversignt, review, and revision of the compliance program. The compliance program includes any programs, policies, and/or procedures necessary to ensure that the District fillfills all of its obligations under the Revised Plan. The committee meets weekly to discuss compliance issues and to discuss plan implementation in their respective areas. The compliance philosophy is based on internalizing the Revised Plan through the performance responsibilities of the respective organizational divisions. For example, the instruction division is responsible for integrating the Revised Plan's requirements into development of the curriculum, staff development, and other similar functions of that division. Tne associate superintendent who heads the division is the responsible person for the components of the Revised Plan that are appropriate for his,'her division. Through the internalization ofthe philosophy and. the integration of the Revised Plan into the District A structure, the respective divisions proactively monitor compliance. The associate superintendents are responsiblefor taking appropriate action with respect 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 31. 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)]\nSee 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)]\n[Tr. at 46 (Norman)]\n[Tr. at 517 (Carter)], little or nothing has been done. 32. In Central High School, the flagship school [Tr. at 612 (Daugherty)] most of the AP ArJGSHUA.OPP -16-f teachers were white. [Tr. at 291-296 (R. Horton)\nTr. at 321, 323, 324 (C. Mercer)\nTr. at 336-37, 338-339, 353,( J. Mercer)] 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, LRSDs evidence shows its participation in this non district 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 736-37 (Lesley)] [Ex. 826] b. The Hostile Treatment of African American Students in Advanced Courses 33. Black students enrolled 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)\nTr. at 336- 38 (J. Mercer), Tr. at 401-406 (C. Payne)\nTr. at 427-31 (D.J. Thames)\nTr. 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)\nat 576 (J. Mosby)] The inevitable consequence of the harassment is to identify advanced and enriched courses as a hostile environment for black students and one which they should shun. [Tr. at 70 (C. Norman)\nTr. at 632, 651-52 (Roberts)] A:'JOSHUA. OPP -17-r k c. The Multiple Barriers to Access to the University\" Studies Program . The LRSD and the University of Arkansas at Little Rock jointly operate within the Hall High School facility the University Studies Program. Courses are co-taught bv Hall High 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\n[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 enroll in this program, a student must pay for each course taken one half of the normal tuition charged for the comparable course at UALR and for related expenses. [Tr. at 109- 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 on at least 50% of the college preparatory courses\nor a minimum overall grade average of 3.0, or a minimum score of at least 21 on the ACT. [March 2000 Report at 27] 38. The evidence cited in paragraphs 33 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-\u0026lt; 39. The enrollment of Hall High School was approximately 80 to 90% as of 2001-2002 school year. [Tr. at 106 (P. Watson)] 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 AA(%) In Courses 57(42%) 105(65%) 40. These data show: (a) in 2000-2001 the number of .African American students participating declined by 22, 28%\n(b) in 2000-2001 the number of non African 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\n(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 ofthe program greatly increased in the second year of its operation. [March 2001 Report at 46] 41. TheLRSDreported ACT results by race for the years 1997-1998\n1998-1999\n1999-2000 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 thre! 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:JOSHVA.OPP -19-r  43. Two types of evidence in the record provide a basis for concluding that the racially segregated enrollment of the University Studies Program is attributed at least in part to the requirement that students pay partial tuition. (a) Poverty 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 eliaible for free or reduced lunch. Court Ex. 731 (b) Many witnesses agreed 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 HOP, Watson)]\n[Tr. at 532(J. Carter)]\n[Tr. at 602 (Strickland)]\n[Tr. at 605-6lO(Daughtery)]\n[Tr. at 624-627(Roberts)]\n[Tr. at 732 (Lesley)] 44. The March 2001 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 whether 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 Americans...). 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:^JOSHUA.OPP -20-i 2001 Reports 46, The 2000 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 report 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 Pat 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 A,VID. 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 747 (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) 47, The Interim Report also promised implementation of an .Accelerated Academic Student Academic Program, (AS.AP), a primary purpose of which was to radically narrow the achievement gap between .African .American and white students, (p. 31), The 2001 Report makes no reference to the ASAP program, however, ASAP vanished. On p, 33 of the Interim Report, there is a note that all program components are incorporated in this dr^. Later on the page, the plan was identified as being tentative and dependent upon submitting a proposal for funding from the federal government. 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 LTI Pre-.AR Workshop on a voluntary basis for teachers. This proposal did not focus upon -African American students in panicular. It allowed high schools the option, for two years, 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 of January, 2001, the optional program would continue at one of the schools through the next 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 participation in AP and Pre-AP 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 makes reference to a International Baccalaureate Programme at Cloverdale Middle and McClellan High Schools, [p. 34J The IBP was proffered as a program for increasing .African American participation in AP and Pre-.AP 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 fu.nds 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-AP and University courses, (p. 34). 50. The IBP program does not operate and was not funded!!. 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. 30] Dr. Lesley did not contradict Mr. Carters statement! A:^JOSHUA.OPPi 51. The Districts support for the University Studies Program which favors white students is to be compared the EBP 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 -UP 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 (see 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 refiised because there was no one to teach it. [Tr. at 352, 357] (See p. 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. Mercer)] 53. The LRSD asserted that it. had fLilftUed its obligation of Section 2.6.2 by implementing programs to assist African American students to be successfiil 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 programs. The programs which are listed are College Preparatory Enrichment Program (CPEP)\nAcademic Enricliment and Gifted in Summer (AEGIS)\nSouth East Consortium for Minorities in Engineering (SECME)\nSMART, a summer program for about 200 students\nSchool Based Student Support Teams\nand English I and II Workshop - Pre-AP, CPEP and AEGIS are not held out as being for the A:VOSHUA.OPP -23-I purpose of assisting African Americans in being successful in advanced courses. SECME 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. SIVLART 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 Shcning 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 Historj' 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 AA students. [CX. 870, p. 33] b) The proposed International Baccalaureate Programme (IBP) was 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-I i .African American students. (d) High School Reading and Writing Workshop I is 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 .African American students at being successful in advanced courses. (e) Teachers and counselor 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-service training is required by the Arkansas Department of Education . (0 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\" Pre-AP or .AP courses. There is no showing ofhow this will benefit African American students in being successful in .AP courses, [e. p.30] (g) 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 American students in being successful in advanced placement during the regular school year. (i) The SECME Program operated for one year. [Tr. at 105 (P. Watson)] 0) The other programs either were not implemented or were not supported by use of any A:UOSHUA.OPP -25-i data in either report, [e.g. CX 69, pp. 40-41, CX 870, pp. 31-50] (k) The summer programs CPEP, SMART and .AEGIS have limited enrolled. [Tr. at 738, 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)\nTr. at 88, 93, 95 (Norman), Tr. at 564, 566, 576 (Mosby)\nTr. 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 March 15, 2001 Report purports to show an increase in African American extracurricular participation between 1997-98 and 1999-00, p. 27. 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 Districts chart on p. 28 regarding co-curricular activity participation, the aggregated data show an African American increase from 2579 to 3988. That reflects a 54.6% increase. Non black participation, however. increased from 1222 to 1864, a percentage increase of 52.5%. The extracurricular activity and co- curricular activity general participation therefore remained steady. 57. By LRSD presenting aggregated data, [ir. at 740 (Lesley)\nCX. 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 wdtnesses A:\\JOSHUA.OPP -26-becomes more relevant with respect to dererminins whether the policies, programs or procedures which the District developed 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 Extracurriculai- 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 School Interscholastic Athletics Cheerleading Drill Team/Pep 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 JJTB -R2 applies to the middle schools and essentially repeats the provision in 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 Receipts and Admissions [CX. Ex. 719] .4. JOSHUA.OPP -27- 'oI This policy requires that in cooperation with the Activities Advisory Board (AAB), there will be a comprehensive 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 AAB. 58. The District staff determined that there were disparities which they identified in co- curricular and extracurricular activities.^ The District staff who addressed the subject include the .Associate Superintendent for Student Services, Sadie Mitchell, the zAssistant Superintendent for Secondary Schools, Dr. Marian Lacey, Jodie Carter, Principal of McClellan High School, Ms. Cassandra Norman, Principal of Fair 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]\nDr. Lacey [Tr. at 790, 791]\nPrincipal Carter [Tr. at 474, 492, 493, 502, 503], Principal Norman [Tr. at 71, 72]\nMr. Babbs [Tr at 13 3 ]. Other witnesses who testified that there were racial disparities with respect to curricular and extracurricular activities were Ramona Horton [Tr. at 312, 313]\nMichael Faucette, [Tr. at 199, 200, 201,203-206]\nCrystal Mercer, a student at Central High School [Tr at 322,323]\nJustin 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 time of the District's Interim Compliance Report, a steering committee had been formed to organize an Activities Advisory Board. (\"AAB\") for the purpose of Hhe 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)\nTr. at 199-200, 203 (Faucette)\nTr. at 261-262 (Mitchell), Tr. at 358-360, 362-364 (Mercer)] A:'JOSHUA.OPP -28-J 5 promoting, supporting and enhancing extracurricular activities and co-curricular activities at all schools. The AAB, comprised of District staff, parents, student and community' representatives, began monthly meetings in April of2000. Specific areas related to activities have been targeted for discussion and implementation. The focus of these discussion has been on a disproportinate number of African American students -who do not hcre the financial resources to participate in activities. Other areas of discussion and implementation include... funding, accessibility.. Each area has been discussed, in connection with increasing student participation with emphasis on assuring Afi'i can American participation, [underlining added for emphasis] 60. Despite the finding of the 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\nmoreover, 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 LRSDs consistent emphasis on the differences between family incomes in the systems white and African families , 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 or imbalances in participation in extra 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 Mitchell was responsible for proactively monitoring compliance and taking A-VOSHUA.OPP -29-I I appropriate action with respect to incidents of non-compliance. [Tr. at 136, 138 (Babbs)] Ms. Mitchell testified to her shirking this responsibility [Tr. at 262-263, emphasis added]: Q- A. You are aware. Letsjust talk about the reality. You were aware -you ha\\e not heard the testimony. But you are aware, for instance, quiz bowl and debate, Odyssey of the Mind, various activitieswere all white, were you not?] Yes. Q- I see. Did you develop a pleat for changing that? A. 1 did twt develop a plan. The building principal did. Q. Well, in the three years that the plan was in operation before the report seeking release fi'om unitary status, did you have any occasion to prepare any writing reflecting that wa.s 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 suggesting that you only prepare requests or reports at Joshua's request, are you? A. I only respond to comolaints from patrons, community, Joshua. ODMs. and anybody else, through formal complaints. Q- So you never made an evaluation or assessment even of those things io determine the extent to which black participation was being minimized? A. 1 did not personally. Staff members did. Q- I see. Was there a plan of action developed by the Compliance Committee for dealing with the lack of black participation in activities 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 plan by a principal or a sponsor. This included testimony that the myriad activities at Central High School had racially disparate A.DOSffDAOPF -30-i 1 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 Mike Daugherty who has disassociated liimself from the petition before the Court was uncomfortable with information being given strictly in percentages rather than in actual numbers regarding the survey. [Tr. at 614] 66. No District witness testified that there was a specific plan, which the District through any representative, developed for addressing the disparities in extracurricular and co-curricular activities. Some ofthe 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. a.t 477. 478, 492, 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 activdties 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 contraiy' 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 extracurricular activities. 69. He investigated an incident where a white coach acknowledged that he choked a black A:-JOSHUA.OPP -31-t I student at SW Middle School. [Tr. at 5 73-576 (Mosby) (See also CX 771)]. Ms. Sadie Mitchell, Gillespies supervisor, downplayed the incident saying she didnt 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] Mitchells 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 ven,' 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\nand. a white coach slapping an African American student at. Mann Middle School [Pp. 26-28, Deposition ofR. Gillespie] 72. The same coach involved in the chokina incident at SW Middle Schoo.1 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 9' 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.T 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] /o. Chris Payne, a student at Fair High School, testified that he was discouraged from A:'JOSHUA.OPPI ( participating in Quiz Bowl by Ms. Pickering, a white teacher, who told him that he could not be on the A team [Tr. at 403-04]. 76. Payne stated that his white Calculus Teacher, Mr. Wilder, refused to write a recommendation for him because he didnt think Payne was smart enough to attend Governors 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 of which was to promote interracial diversity at Centra! High School by a white teacher named Mr. 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 of racial diversity. [Tr. at 192-96, 19-30] 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 Mrican Americans in extracurricular activities. . . . The LRSD adopted several regulations identifying activities to promote compliance with Section 2.6 of the Revised Plan A:'JOSHUA.OPP -J j-1 regarding extracurricular activities. 82. There were segregated acrivities and apparent barriers to .African .Americans participation in them. Section 2.6, implementing regulations, and the compliance structure created pursuant to Sections 2.13, 2.13.1, 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 Rins per day for high and middle schools with a notation that no eligible 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 312-313], Justin Mercer [Tr. at 358], Pam Mercer [ Tr. at 450]\n[Tr. at 532 (J. Carter)] [Tr. at 75 (C. Norman)] They testified that the District did not provide transportation for a number of activities. G. The Obligations to Ensure that There is No Racial Discrimination In the Provision of Guidance and Counseling Services and (H.) To Provide More Equirt 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, aw'ards and scholarships. The report states that A:^JOSHUA.OPP -34-I J 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 2001 Report (at p. 160) simply recites the scholarships awarded at the high schools by number, at p. 160 and by dollar value, at p. 161. The District does not recite any activities or programs that it engaged in to meet the provisions of Section 2.11 at page 160, other than a survey which purported represented the opinion of 94% of all parents that help and guidance was available to their child.\" There has been no dispute that counseling sendees 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 and non .African American students on an academic basis. 89. With respect to honor graduates, .African American students constitute 66% of the high school enrollment. 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 sendees 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 with respect to the schools valedictorian position. [Tr. at 115-119 (Watson)] Joshua was instrumental in preventing this intentional racial practice from occurring. A:'JOSHVA.OPP1 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 ,AP courses. He did not review or monitor the annual guidance counselors 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 306] In her opinion, the deliver^' of counseling services was poor. [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 AP classes. [Tr. at 319-320, 324] 94. Justin Mercer stated his counselor suggested that he should not take AP Economics rvhen he wanted to improve his GPA [Tr. at 352] 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 next class assignment from a white friend had .AP Economics on his schedule. [Tr. at 352-353] Mercers counselor told him that he could not enroll in .AP Physics because he did not meet the requirements to take it. [Tr. at 354] Mercers counselor was white. [Tr. at 371] 95. The counselors at. Central told Justin Mercer when he arrived at Central that he should not take AP and Pre-AP courses. The reason given was that he had been in regular courses in Junior High School and that the teachers w^ere familiar with his transcript. [Tr. at 377] Mercers counselor also discouraged him from taking AP Physics II because of his background. [Tr. at 384] A:^JOSHUA.OPP -36-I 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 zAP English. [Tr. at 426] His counselor also advised him to drop Ms. Pickering after 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. Between 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 amounts favored Centra) students by more than 5 to 1. This reflects the second class status/perception of McClellan .High School in comparison to Central. CENTRAL HIGH SCHOOL 98a. When African 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. Aarov v. Coover, 143 F. Supp. 855 (E.D. Ark 1956). The plan was designed to delay the process for as long as possible pursuant to Brown v Board of Education o f Topeka. Kansas, 347 U.S. 483, (1954), and to involve as few minority race students as possible. The Court of Appeals affirmed 243 F2d 361 (8 Cir. 1956). The District was select in choosing the first 17 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. A5JOSHUA.OPP -37-1 I 98b, In 1972, fifteen years after Central High School had become a symbol of public resistance to the principle of school desegregation, Michael 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 tenure, 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 Faucettes three years in the school, he was the only .African American male student in his classes. He was often the only African .American 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 Faucettes attendance at the school. he had only one black teacher during his three years. There was only one black cheerleader durin\nig Faucettes 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 Mr. 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. \\ATiile at the University of Washington, he developed a A:^JOSHUA.OPP -38-1 I program designed to help high school students succeed at the higher education level. [ Tr. at 169 (Faucette)] 102. By 1998, the 40* 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. As part of his application process in the LRSD, he visited Central High School in February, 1998. The then principal, Rudolph Howard, 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\nhe visited a regular English class in which there were, in contrast, only two 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\nMr. 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 12* grade. In that year, in the 12* grade, there were nineteen (19) English sections, some advanced placement sections, some regular English sections and two sections with a remedial designation. Dr. Faucette obserx'ed 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 next two school years (the second and third years of the RevisedPlan). [Tr. at 172-/5, (Faucette)] Other evidence revealed that there were few black students A:^JOSHUA.OPP -39-1 in advanced placement classes during the period of the plan. [Tr, at 303 (R. Horton)\nat 319 (C. Mercer)\nat 330 (J. 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) .African American persons, however, African .American teachers taught no (98-99) or few (99-00, 00-01) advanced sections of English in the school as shown by the following chart: Total Eng sections Total advanced secs 98-99 99-00 2000-01 69 88 84 36 37 Adv sec taught by Blacks 4 0 9 English teachers 8W/8B 8W/8B 8w/8B [Tr, 175-76, 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 numbered 23 to 37 during this period. This is not explained by any neutral factor, (a) Dr. Faucette taught. 12\" grade sections in 1998-99\n9\" grade sections in 1999-00\nand 12 sections again in 2000- 01. He was assigned to the respective grade levels by the English department chairperson and the Central High School principal, (b) It is the practice in the LRSD for principals to assign teachers to particular subject areas. [Tr. at 90 (C. Norman)\nat 512 (J. Carter) ] (c) When there was a vacancy in a tenth grade Pre-AP English course at the start of the 1999-2000 school year at Centra! High School, the administration initially assigned a new white teacher to this position rather than assigning one ofthe experienced black staff members. [Tr. at 180 (Faucette)] A:'JOSHUA.OPP -40-I I 106. During Dr. Faucette's first three years of teaching at Central High School which corresponded with the three years of the Revised Plan, there were a total of ten black English teachers in the school (taking account of turnover). Only two of these ten black faculty members taught any advanced sections of English during the period of the Plan. [Tr. at 180 (Faucette)] [This communicates the idea to students and staff alike that Central has racial staff assignment criteria and practices, just as it has for students.] 107. The virtual nonexistence of African American faculty in advanced placement classes was a barrier to the participation of African American students in these programs. See Section 2.6 (... .ensure that there are no barriers to participation by qualified African .Americans in advanced placement courses...). When Dr. Faucette attended, with the encouragement of the school system, a workshop on advanced placement classes, the program staff emphasized that having more teachers of color in advanced placement classes was important to attracting more students of color to these classes. [Tr. at 184(Faucette)] Similarly, Dr. Lesley testified that when LRSD staff considered the problem of low African American participation in advanced placement classes, the lack of African American faculty was recognized to be a barrier to the participation of African .American students in those programs. [ Tr. at 672] 108. The Central High School administration conducted monthly school-wide faculty meetings during the three years of the plan, which Dr. Faucette attended. There was no discussion during those meetings regarding activities to implement Sections 2.6, 2.6.1, and 2.6.2 of the Revised Plan. [Tr. at 186 (Faucette)] During the three years of the Plan, two white females served at various times as the chair of the schools English department. They did not organize any activity designed to implement Sections 2.6. 2.6.1, and 2.6.2 of the Plan. [Tr. at 187-88 (Faucette)] No individual A:''JOSHUA.OPP I 1 came to Central High School from the Systems central ofEceto conduct activities to implement these sections of rhe Plan. [Tr. at 189 (Faucette)] 109. The inaction described in the previous paragraph was in the face of obvious need for a proactive response to the terms of the Plan. As indicated, supra, few or no black staff were assigned to teach sections of advanced students and students were segregated within the school by the tracks or levels of their sections and, therefore, by race. In addition, as evidenced by the Systems data , there was very limited participation of African American students in .AP classes in Central High School. See [Tr. at 705-06 (Lesley)] System Report, Court Exhibit 705, revealed that there were more black .AP students in McClellan High School during 1998-2000. Tliis is so despite the fact that McClellan had fewer black students than Central, and the fact that Centrals black students were, on the average, somewhat stronger academically as evidenced by SAT9 test results for grade 10 for the three years of the Plan. [See Court Ex. 741] 110. Guidance counselors and teachers at Central High School were deficient in terms of encouraging qualified African American students to enroll in AP courses. [Tr. at 207-08 (M. Faucette)\nTr. at 319 (C. Mercer)\nTr at 330-334, 352-354 (J. Mercer)]\nTr. at 299, 307-8,314 (R. Horton)] 111. Tarick Horton entered Central High School during the first year of the Revised Plan, after earning As and Bs in his acadmic subjects and some SAT 9 test scores in the 98' and 99' percentiles. The adverse atmosphere in Pre-AP and .AP classes for black students at Central is evidenced by the fact that Tarick experienced a decline in his academic coursework making Cs, Ds and Fs while enrolled in. Pre-AP and .AP courses. Despite parental involvement and intervention by the administration and counselors, his grades continued to decline in these courses. Tarick went from -4: 'JOSHUA.OPP -42-4 an honor roll student while in elementary' and middle school to a student who graduated with marginal grades. [Tr, at 289-310 (R. Horton)] If Tarick could not be academically successful at Central with grades and test scores more typical of white students, clearly the Districr could not in good faith expect less accomplished Black students to be. 112. Dr. Faucette testified that he received several Black Pre-AP students who move from Pre-AP classes to his regular class during the year. He found these students to be capable of good academic work and by implication that they should have been encouraged to remain in AP. [Tr. at 191-192 (Faucette)] 113. The record contains much evidence of the adverse atmosphere in .AP classes for African American students beyond the disproportionate white faculty in AP courses (a) Falon Horton. Falon Horton, Ramona Hortons daughter., was a cheerleader. .An AP teacher embarassed her by referring to her as a cheerleader when she answered questions. Falons mother complained to Principal Howard who provided no remedy for the situation. [Tr. at 312 (R. Horton)] (b) Tarick Horton. A teacher reported to Tarick Hortons mother that his failing grades were due to missing assignments. Ms. Horton provided personally for submission of the missing work but was told that the work was still missing and he received a failing grade in the class. At times the staff reported that they had lost Taricks homework. In addition, Ms. Horton complained to Principal Howard about Taricks Pre-AP History' teacher is removing Tarick from her class because he raised his hand to ask a question. [Tr. at 291-93 (R. Horton)] Howard took no action regarding the matter and Secondary Assistant Lacey could not believe that would happen. [Tr. at A:JOSffUA.OPP -43-I 804 (Lacey)] (c) Crystal Mercer. In an AP .An History class, a white teacher showed favoritism to white female students, who knew her son, by inviting them to her house to study for scheduled tests. Crystal Mercer did not receive an invitation, which was extended the white students during class time. [Tr. at 321-22 (C. Mercer)] (d) Justin Mercer. In an .AP English class, a white teacher requested the class to choose a discussion leader for a discussion of a book by Ralph Waldo Emerson. The class selected Justin. Mercer. The teacher then ignored the selection by the class and chose a. wliite female student to be the discussion leader. The next day the teacher simply did. not provide for the class to select a discussion leader [Tr. at 336-37 (J. Mercer)] During the discussion about Emerson, Justin Mercer stated that Emersons position was contradictory. The teacher excluded Justin from the class for his comment involving the subject matter of the lesson. His mother had to intervene with the school Principal Howard in order to gain Justins re-entiy into the class. [Tr. at 337- 38 (J. Mercer)] 114. Dr. Faucette participated in. an effort to provide an enrichment opportunity for the Central High School student body by providing an internationally renowned authority from Ireland as speaker at a school-wide assembly about Robert Louis Stevenson. However, when the program occurred, only .AP English students were at first permitted to attend. WTien the number of students in attendance was embarrassingly small, additional students were invited. However, the second group of invitees was limited to .AP Science students who were almost all white. The result w'as that regular English students and the membership of Dr. Faucettes Creative Writing club, which was racially A:'JOSHUA.OPP -44-t 1 diverse, were excluded from the program unless the club members also happened to be in AP programs. [Tr. at 192-96, 229-30 (Faucette)] 115. The assembly incident had a racial impact. AP students who were admitted were disproportionately white\nthe regular English sections and the Creative Writing club which were well represented by black students, were excluded. The incident also evidenced the practice in the school of treating .AP students as elite and thus superior and other students as inferior and of lesser importance. 116 Dr. Faucette complained to the English department chairperson, a white female, about the exclusionary' impact and method for admitting students to the assembly and the message that the exclusion evidenced. He received no response from her. Principal Howard, however, chastised Dr. Faucette for his written protest to the English department chair, telling him that he had no right to upset other teachers. [Tr. at 194-95 (Faucette)] Howards action recognized and reinforced the superior status of white teachers. [CX. 763] 117. The Central High School guidance staff also handled enrollment for Dr. Faucettes Creative writing course in a manner that advantaged white students and disadvantaged African .American students. He found that the staff assigned to the course white students who had not followed the established procedure for seeking admission, wdth the result that AA student who had followed the procedure, were excluded. [Tr. at 196-97 (Faucette)] 118. There were many extracurricular and co-curricular activities at Central High School which were racially identifiable, taking into account the overall racial makeup of the school. Disproportionately white activities included, inter alia, quiz bowl, mock trial, future problem solvers. the cheerleaders, the swim team, tennis, soccer, the Yearbook staff, orchestra, and the schools A:^JOSHUA.OPP -45-t I Newspaper staff. [Tr. at 199-200, 203, (Faucette)\nTr. at 261-62 (Mitchell)\nTr. at 356-58, 360, 362, 364 (J. Mercer)] Zero numbers and relative low numbers over time of-Mrican American participants in programs at Central surely convey an impression to students about race. It is likewise with one race programs in which Black students dominate. See testimony of J. Mercer [Tr. at 396-98] who was referred by the white student council sponsor to a Black oriented program in order to achieve a desegregated activity purpose. 119 Crystal and Justin Mercer each sought to panicipatein the mock trial program at Central High School, an activity which has been historically populated by white students. They each were met by unwelcoming conduct by the white sponsors of the program. [Tr. at 322-23 (C. Mercer), Tr. at 386-88 (J. Mercer)] This response was at odds with Section 2.6 of the Plan calling for actions to promote participation by qualified African Americans in extracurricular activities and LRSD Regulation JJ-R (Para. 5) addressing: strategies [in each school] ... to encourage participation in cocurricular activities. [CX 719] See also Tr. at 361-62 (J. Mercer) (discouraged from participating in debate program). 120. The content of the yearbook illustrated a problem which resulting from its staff being overwhelmingly white. Its content tended to focus on the activities of white to the exclusion of black. students who were the majority of the Central's enrollment. [Tr. at 203 (Faucette)] 121. There was considerable evidence of barriers (Section 2.6) which contributed to the identifiably white makeup of extracurricular and co-curricular activities at Central. These included finances (the considerable cost of cheerleader camp, (see Tr. at 312-313 (R. Horton) Tr. at 790 (Lacey)]), a fee to participate in the troubadors, the cost of purchasing an instrument for the orchestra,), the lack of transportation for an early morning activity (orchestra), the lack of A:'JOSHUA.OPP -46-t t transportation for debate team comperirions, the lack of transponation for cheerleaders to travel to games, and the tradition of an activity long being disproponionately populated by white (yearbook staff). [Tr. at 200-01, 203-06 (Faucette)\nTr. at 312-13(R. Honon)\nTr. at 313, 358 (J. Mercer)] 122. The tradition at Central has been for the football homecoming queen to be a white female and the basketball homecoming queen to be a black female. [Tr. at 205-06 (Faucette)] We note that basketball is a Black sport at Central while football is mixed. 123. Despite the provisions ofthe Revised Plan (Sections 2.1 and 2.6), the problem of racially identifiable activities was not a subject of discussion at any of the monthly faculty meetings at the school. (Tr. at 199-00, 207(Faucette)] This inaction was contrary' to District Regulation JJ-R, which the LRSD cited as evidence ofirs substantial compliance. [(CX 719, March 2000 Report at 17] The regulation reads in paragraph ten:  When racial disparities are identified in co-curricular activities, the principal will work with staff to develop a plan for improvement, where appropriate. [CX 719, Reg. JJ-R] 124. No focused effort to address barriers to participation in extracurricular activities at Central High School is shown by the March 2000 Report [p. 17], the March 2001 Report 9[p. 27-29], or the LRSDs testimony. The LRSD did not call former Principal Howard to show such an effort (or to rebut any evidence.) 125. Another indication of the favoritism directed to white persons within Central High School involves the treatment of white teachers compared to black teachers. As indicated, white teachers are assigned disproportionately to teach advanced sections. White teachers favored position is also evidenced by' the assignment of preparation time, and the principals approval or condonation in matters such as leaving the building, being absent from class without a substitute, nap time, being A:''JOSHUA.OPP -47-t J late to class, and dealing with personal matters during the school day [Tr. at 210 (Faucette)] 126. Dr. Faucettes Creative Writing class produced a magazine, The Labyrinth, which won a national award. Thereafter, the LRSD gifted programs office claimed credit for the award in its newsletter without mentioning him. [Tr. at 212 (Faucette)] This insensitivity to a black faculty member was akin to the situation in 1975 when Faucette had to wait until he left the school system to receive a plaudit for his exemplar} standardized test score. [This also diminishes the accomplishments of regular class students] See also Tr. at 234 (Faucette\nhis classroom which was used for the large, racially diverse Creative Writing club was taken by the administration for use by another class without notice to him). 127. During his Junior year, Justin Mercer wanted to start a club that promoted diversity because one could observe at Central segregation between whites and blacks not only in classes but also during lunch and other activities. The club would have leaders from different races. Mercer approached Principal Howard about starting an organization. Mr. Howard replied that a sponsor would be needed and suggested a white male who was the sponsor of the Student Council. The individual responded that it would not be good for the student council to take on the burden of having another organization with it. The sponsor suggested that Mercer approach the Black Culture Society, an idea which Mercer rejected because that organization promoted separation to some extent, the problem, to which he was trying to combat. At this point, Justin Mercer returned to Principal Howard but the second approach did not yield a successful outcome to his efforts either. Justin viewed his idea, an excellent one given the extent to which Central, at the turn of the century. mirrored the segregated and discriminator}' patterns of the past, as having been shot down. [Tr. at 396-98 (J. Mercer)] A:-'JOSHUA.OPP -48-t I 127a. Testimony of Dr. Terrence Roberts 1) Section 2.1.1. of the Revised Plan called for the retaining of an expert, in part to assist LRSD in devising remedies to problems concerning desegregation or racial discrimination which adversely effect African- American students (emphasis added). However, the LRSD utilized Dr. Roberts almost exclusively to comment on plans that have been develop, to offer suggestions, change, that sort of thing. [Tr, at 620 (Roberts)] 2) In the course of his many contacts with the system, Dr. Roberts concluded that the objective of LRSD efforts was not helping the intended beneficiaries of the Plan, but to be released from Court supervision. And it seemed to be a matter of whatever it took to achieve that goal, and it didnt really have an3n:hing to do with the students or the plan. [Tr. at 629 (Roberts)] 3) Compliance with Section 2.1 of the Revised Plan requires consideration of attitudes toward people who are diflferent [Tr. at 631 (Roberts)], here the .African American students, and whether there are peer relationship(s) between . . [students], and [whether] you have a relationship between all those students and the teacher where there are no differentiations based on race. [Tr. at 632 (Roberts)] the evidence reveals many attitudinal problems and differentiations based on race, in the context of advanced courses, extracurricular activities and guidance services. 128. Dr. Faucette testified that Central enjoys a reputation of being a beacon, being a A:-JOSHUA.OPP -49-t standard bearer for integration and serving all students but thats not the truth within the walls of our school. [Tr. at 208-09 ] The basis of this conclusion is apparenx from his testimony summarized above. 129. Justin Mercer gave the following parallel testimony [ Tr. at 365-66]: Q- Now, Mt. Mercer, did yon have cm occasion to form an opinion as whether Central was one or h-vo schools? A. Yes. Personal observation, experience, and yon Icnow, just being there period, you can see that Central is two schools in itself. You have an upper echelon school comprised of mostly AP classes and majority where it is kind of elitist. And you have another Central, where it is relegated to majority blacks and. minorities, where the teachers don 't seem to have a good vibe with the students, and it is not really about the education aspect. Its two different schools, like a term that some of my friends use, . . . you have Central. College and Central. High School. The AP students are like, you are in Central. College and its rigorous, and it. is basically majority white. And you have Central High School, where it is play, not necessarily fun, but its not really an. education. \" [See also CX. 789] 130. In terms of overall, compliance with the Plan, the seriousness of the compliance problems at Central is of heightened or significance because it has come to be known as the flagship school for the District. [Tr. at 612 (Daughtery)] GOOD FAITH AGAIN 131. The Good Faith ofthe District is placed into perspective by the above findings. The failings of the school district began with the Districts conscious effort to develop compliance activities without the legitimate involvement of the Joshua Intervenors or with the experts rather the District sought to present a posture of technical compliance with plan provisions. [Roberts, Tr. at 49, supra. 132. The lack of good faith is further shown by the District Plan to reinforce rather than A:'JOSHUA.OPP -50-t I dismantle programs which have disparate racial effect, by presenting programs that it did not intend to implement, by changing the data that it promised to present, (recall use of proficient rather advanced and aggregated rather than disaggregated data), by passing the buck to lower level administrators, by promising serious evaluations similar to the ESL evaluation and not performing them, by falsifying the existence of evaluation reports, by misrepresenting the role of ODM in preparing reports, and by creating programs which it knew had means tests associated with them which had disparate racial impact 133. The staff recognized the many barriers to assignment and participation of qualified African American students in activities and AP courses but did not develop a plan at the district level by which to address those barriers.\" 134. Bad faith involves misrepresentation and deceit which are evident in this case. (See facts states above) The result ofthe Districts implementation of the Revised Desegregation and Education Plan has been to effectively reintroduce freedom of Choice and thus racially segregated classroom assignment practices in such a way as to ensure that racially identifiable tracts will exist for years to come in this District. The original resistence of LR reflected by prolonged delay which involves as The barriers include, inter alia, a. (1) too few teachers of color, (2) insufficient backgrounds of,African American students for them to be successful in AP classes, (3) no scholarship monies for University Studies pupils\n(4) lack of parental understanding of advantages of AP class participation and not all AP classes being offered at each school. (Testimony ofLesley, Tr. 672, 695, 728, 735, 736, 732, 747)\nb. (1) relatively low achievement of African American [ Tr. at 51-52 (Norman)\nTr. at 472, 490, 492, 493, 496, 498-99, 512, 524 (Carter)]\n(2) failure to follow through on the International Baccalaureate Programme [r. At 529-30 (Carter)], (3) elimination of SECME [Tr. at 104 (Watson)], and (4) hostility of sponsors for racially inclusive clubs and activities [Tr. at 492 (Carter), Tr. at 57, 70 (Norman)\nTr. at 111-112 (Watson)] .4: JOSHUA.OPP -51-t I few .African .Ajuerican students as possible is continued. The idea of racial superiority and racial inferiority remain alive in the manner in which the District has implemented the 1998 agreement. CONCLUSIONS OF LAW 1. The Revised Desegregation and Education Plan contemplated is valid when the terms and expectations are mutually understood. There is no showing that the parties mutually understood the terms of the Plan with respect to the panicipation of Joshuas involvement in the developmem of policies, programs and procedures on the front end or of the role of the experts regarding that subject. This material misunderstanding led the parties unnecessarily to their adversary status unless it can be determined that the decisions to exclude Joshua from the process were intentional and thus in bad faith. 2. Bad faith is a basis for reviewing and for rejecting facts presented in support\nof compliance. Good faith takes into account the Districts cooperation and conduct in its interactions with the Office of Desegregation Monitoring, the Court and the parties. Good faith also is to be measured by the Districts instituting practices which the District reasonably should have known would result in racial impact, such as programs where means tests had to be met in order for student participation to occur. Good faith is contradicted where raising the bar of student achievement doesnot fully take into account the disparate circumstances ofthe majority group whose educational attainments lag far behind those of their minority counterparts. Good faith is absent when programs are promised and represented as occurring when in fact they are not being delivered nor are they occurring. Good faith is measured by the support - scaffolding, - essential to African American success in .AP courses which the District has not provided. It is measured by competent, timely written annual evaluations of all programs which it committed to perform and make use of in AyJOSHUA.OPP -52-t * The Revised Desegregation and Education Plan. Good faith is measured funher by an analysis of whether planned programs or remedy reinstitute and/or reinforce practices which tend to segregate rather than integrate programs and activities in the LRSD schools. Good faith recognizes the import of the law of the case concept which includes the desegregation objective of the Revised Desegregation and Education Plan. For the schools which are undeniably racially identifiable, good faith requires that they be provided the necessary support to enable them to provide their students with equal educational opportunities, despite their racial composition, as contemplated by Brown v Board of Education, supra. The text of the relevant sections of the Revised Desegregation and Education Plan involved in the current hearing, rather than constitutional standards, provides the benchmark for determining whether the Court, should terminate its involvement regarding these sections. In Sections . . . of the Revised. Plan, the LRSD voluntarily assumed obligations which require adequate implementation of the identified activity, independent of the intent of the representative(s) of the LRSD involved. The performance of the LRSD with regard to extracurricular activities (Section 2.6) did not approach substantial compliance. Rather, the evidence shows default\nthere w^as a shirking or ignoring of the obligations assumed in Section 2.6 of the Revised Plan, as reinforced in th epolicies adopted by the School Board and the creation of the Compliance and Quality Assurance Committee and the specifying of its duties. The Supreme Court has expressly rejected the notion that a person can not be found to be discriminated against his/her own minority group. Each of the two Court Opinions in support of the judgment in the case recognize that a person functioning in a discriminatory context may A:'JOSHUA.OPP -53-* judgmem in the case recognize that a person functioning in a discriminatory context may accommodate himself or herself to it. Castaneda v. Partida, 430 U.S. 482, 499-500, 503-04 (1977.) Therefore, the presence of an African American, principal at Central High School in recent years is of no moment in view of Intervenors' evidence, largely unrebutted, regarding that school. Based upon the foregoing findings of fact and conclusions of law, the petition of the LRSD to be declared unitary and therefore released from Court supervision shall be and is hereby denied. Ui kobert Pressman,* Mass Bar No. 405900 A 22 Locust Avenue Lexington, MA 02421 (781) 862-1955 / A.JOSffCM.OP? Respectfullv submitted? 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) 'kickey Hie] I / Attorney^ L\n.aw Evergreen Place 1100 North University, Suite 240 Little Rock, Arkansas 72207-6358 -54- CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been sent by fax arid U.S. Mail, postage prepaid to the following counsel of record, on this /%:^day of 2002: Mr. Chris Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 A T' Jbhn W, Walker A .4.CCSffC-i.(W -55-CtA.Cu/t^^ IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION Q'f: \\i\\/ i Q 2SU2 LITTLE ROCK SCHOOL DISTRICT V. NO. 4:82CV00866 WRW/JTR plS^ts^ PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. LET AL RECEIVED DEFENDANTS MRS. LORENE JOSHUA, ET AL AUG 1 9 2002 INTERVENORS KATHERINE KNIGHT, ET AL OFFICE OF DESEGREGATION MONITORING INTERVENORS MOTION FOR ADDITIONAL TIME TO FILE RESPONSE The Joshua Intervenors respectfolly request an extension until August 26, 2002 to file their Proposed Findings of Fact and Argument in Opposition to the LRSDs Request for Unitary Status 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 13'*' day of this period, on August 6,2002, at approximately 5:30 p.m. The transcript contains almost all of the evidence offered during 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 theDistricts counsel have stated that they do not object to the Courts granting the requested extension. WHEREFORE, the Joshua Intervenors respectfully request that tire Court extend the time for their submission in this matter until not later than August 26, 2002. 7 Respectfully submitted, / // C' Robert Pressm^, Mass Bar No. 405900 22 Locust Avenue Lexington, MA 02421 (781) 862-1955 Joflh'W. Walker, AR Bar No. 64046 / z  ,4ohn w. walker, p.a. 1723 Broadway Little Rock, Arkansas 72206 (501) 374-3758 (501) 374-4187 (Fax) 1 ! rCERTIFICATE OF SERVICE ,2002: I hereby certify that a copy of the foregoing has been sentj?y fax and U.S. Mail, postage prepaid to the following counsel of record, on this 2^day of \nMr. Chris Heller FRIDAY, ELDREDGE \u0026amp; CLARK 400 W. Capitol, Suite 2200 Little Rock, Arkansas 72201 Mr. Dennis R. Hansen Office of the Attorney General 323 Center Street 200 Tower Building Little Rock, Arkansas 72201 Ms. Ann Brown Marshall ODM One Union National Plaza 124 West Capitol, Suite 1895 Mr. Steve Jones JACK, LYON \u0026amp; JONES, P.A. 425 W. Capitol, Suite 3400 Little Rock, Arkansas 72201-3472 Mr. Sam Jones WRIGHT, LINDSEY \u0026amp; JENNINGS 2200 Worthen Bank Building 200 West Capitol Little Rock, Arkansas 72201 Mr. Richard Roachell ROACHELL LAW FIRM 11800 Pleasant Ridge Road, Suite 146 Post Office Box 17388 Little Rock, Arkansas 72222-7388 I y // 7./ Joj0''W. Walker i 4C\u0026lt;- RECEIVED AUG 2 0 2002 FILED S. DISTRICT COUI U.COURT OFRCEOF desegregation monitoring IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION EASTERN DISTRICT ARKANSAS AUG 1 9 2002 JAMES By: LITTLE ROCK SCHOOL DISTRICT PLAINTIFF vs. 4:82CV00866-WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. Let al DEFENDANTS MRS. LORENE JOSHUA, et al INTERVENORS KATHERINE KNIGHT, et al INTERVENORS ORDER Joshuas motion for an extension of time 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 16\"' day of August, 2002. THIS DOCUMENT ENTERED ON DOCKET SHEET IN COMPLIANCE UNITED STATES DISTRICT JUDGE WiTH/RULE 53 AND/OR 79 FRCP ON 6 6 0filed IN THE UNITED STATES DISTRICT COURT ^tern district wkansa.s EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION 1 9 2002 LITTLE ROCK SCHOOL DISTRICT JAMES W. McCO.-.....clerk ----------------PLAINTIFF____ Dtp ClERK V. LR-C-82-866 RECEIVED PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL MRS. LORENE JOSHUA, ET AL KATHERINE KNIGHT, ET AL AUG 2 0 2002 OFRCEOF DESEGREGATION MONITORING DEFENDANTS INTERVENORS INTERVENORS PLAINTIFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Introduction. The issue before the Court is whether the Little Rock School District ( LRSD ) has substantially complied with its Revised Desegregation and Education Plan dated January 16, 1998 (Revised Plan) and should be declared unitary and released from federal court supervision. This Court approved the Revised Plan on April 10,1998 on the joint motion ofthe LRSD and the Joshua Intervenors (Joshua). See Docket Nos. 3107, 3136 and 3144. Section 11 ofthe Revised Plan provided: At the conclusion ofthe 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with reg^d to all aspects of school operations provided that LRSD has subst^tially complied with Its obligations set forth in this Revised Plan. In anticipation of release. Willi llo UUllKttVlVllO ovv XVA W1 I* i X 'DCnc LRSD shall issue a report on March 15,2001 indicating the state of LRSD s comphX S thilevised Plan. Any party challenging LRSDs compliance T/*_______*... T \"DCT^c tnft anOV bears the burden of proof. If no party challenges LRSDs compliance, the abovedescribed order shall be entered without further proceedings. The LRSD reported on March 15, 2001, that it had substantially complied with the Revised Plan. See Docket No. 3410. Joshua challenged the LRSDs compliance with a limited number of Revised Plan sections and bore the burden of proof. See Docket No. 3447. For the reasons set forth below, the Court finds that the LRSD substantially complied with the Revised Plan.Accordingly, the LRSD is hereby granted unitary status and released from federal court supervision. n. History. A. 1954 Through 1972. On May 20, 1954, three days after the Supreme Court's landmark decision in Brown v. Board of Education. 347 U.S. 483 (1954), the LRSD released a public statement declaring its intent to comply with the Constitution and to integrate the LRSD. See Aaron v. Coopgr, 156 F. Supp. 220, 222-23 (E.D. Ark. 1957). The first LRSD desegregation plan was adopted in 1956 and was approved by the Court of Appeals for the Eighth Circuit in 1957. See Cooper v. Aaron, 243 F.2d 361 (8th Cir. 1957). That plan called for gradual desegregation based on geographic attendance zones and was to be fully implemented by 1963. Id. Governor Orval Faubus' attempt to block implementation of this plan resulted in the infamous \"crisis\" at Central High School in 1957. However, as noted by the Supreme Court in Cooper v, Aaron. 358 U.S. 1, 9 (1958), \"the Governor's action had not been requested by the school authorities, and was entirely unheralded. In 1966, the Eighth Circuit approved, with two minor modifications, a \"freedom of choice\" desegregation plan for the LRSD. See Clark v. Little Rock School District, 369 F.2d 661 (Sth Cir. 1966). The Eighth Circuit noted the LRSDs good faith commitment to desegregation: Many of the problems encountered are not of the Board's making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system. Id., at 666. The freedom of choice plan was in effect through the 1968-69 school year. In 1968, the Supreme Court held that \"freedom of choice\" plans, standing alone, failed to satisfy the constitutional obligation of school districts formerly segregated by law. See Green v. County Sch. Bd. of New Kent County. 391 U.S. 430,439-440 (1968). Accordingly, the LRSD developed a new desegregation plan based on geographic attendance zones for the 1969-70 school year. See Clark v. Little Rock School District. 426 F.2d 1035 (8th Cir. 1970). Due to segregated housing patterns within Little Rock, however, a number of racially identifiable 2schools remained under this plan, and the Eighth Circuit found this plan to be \"constitutionally infirm.\" Clark. 426 F.2d at 1044. The LRSD began crosstown busing of students to achieve racial balance in grades 6 through 12 in the 1971-72 school year. See Clark v. Little Rock School District. 328 F. Supp. 1205, 1209 and 1214 (E.D. Ark. 1971). Racial balance was achieved in grades 4 and 5 by means of crosstown busing in the 1972-73 school year. See Clark v. Little Rock School District. 465 F.2d. 1044, 1046 (8th Cir. 1972). By the 1973-74 school year, all LRSD schools and all LRSD grade levels were racially balanced. See Clark v. Little Rock School District, Memorandum and Order filed July 9, 1982, p. 16. B. 1973 Through 1982. The LRSD maintained almost perfect racial balance in its schools from 1973 through 1982 by way of voluntary periodic adjustments of attendance zones. The district court in ClaA noted that \"the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system . . . .\" See Clark v. Little Rock School District. Memorandum and Order filed July 9, 1982, p. 16. Despite nine years of successful desegregation, however, the LRSD was on its way to becoming a one race school district. In the fall of 1971, the LRSD was 42% black. In each year from 1971 through 1981, the number of black students increased while the number of white students decreased. In the fall of 1981, 76% of elementary students were black and 55% of high school students were black. See Little Rock School District v. Pulaski County Special School District. 584 F. Supp. 328, 335 (E.D. Ark. 1984)(\"LRSD v. PCSSD\"). If existing trends continued, it was expected that 90% of the students entering the first grade in the LRSD in the fall of 1989 would be black. See LRSD V. PCSSD. 584 F. Supp. 328, 351 (E.D. Ark. 1984)(\"The Little Rock School District in spite of its good faith efforts to comply with orders of this court and to establish a unitary school system will become a segregated all-black district in a few years if present trends continue, which appears highly likely.\"). 3In early 1981, the LRSD commissioned a study of desegregation in the LRSD by the Desegregation Assistance Team from Stephen F. Austin University (the \"Austin Study\"). The Austin Study concluded that the demographic trends which accounted for the decrease in white enrollment in the LRSD were \"long-term\" and \"deeply rooted,\" and as a result, \"[tjhey are not likely to be fundamentally altered by any change in the desegregation plan within the city.... The changes are rooted in migration patterns, housing segregation practices, changing birth rates, factors that determine the location of new private market housing, and decisions on the location of new subsidized housing.\" Austin Study, p. 28. The \"fundamental\" problem, according to the study, \"has been the school board's inability to expand its boundaries in pace with a very rapidly expanding urban area.\" Austin Study, p. 28. Thus, the Austin Study concluded that the LRSD had done all it could do within its borders to desegregate its schools and that, if the LRSD's accomplishments were not to be undone by the \"vast forces of demographic change,\" the LRSD would have to seek an interdistrict remedy. See Austin Study, p. 28. As an initial step to stem the tide of white flight, the LRSD adopted the Partial K-6 Plan on April 26,1982. Under this plan, the LRSD created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and\nThis project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resoources.\n   \n\n   \n\n  \n\n\n   \n\n  \n\n \n\n\n   \n\n   \n\n \n\n\n   \n\n  \n\n \n\n   \n\n \n\n  \n\n\n   \n\n \n\n  \n\n\n\n   \n\n  \n\n  \n\n\n   \n\n   \n\n  \n\n \n\n \n\n\n   \n\n  \n\n \n\n\n\n\n\n\n\n\n\n   \n\n \n\n\n\n  \n\n\n   \n\n\n\n  \n\n\n\n "},{"id":"bcas_bcmss0837_309","title":"Compliance court filings","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":null,"dc_date":["2002-08/2002-09"],"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","Little Rock School District","Education--Arkansas","School districts--Arkansas--Pulaski County","Educational law and legislation","Education--Evaluation","School administrators"],"dcterms_title":["Compliance court filings"],"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/309"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":null,"dcterms_medium":["documents (object genre)"],"dcterms_extent":null,"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"\n \n\n\n\n\n\n\n\n  \n\n\n   \n\n   \n\n\n   \n\n\n   \n\n\n\n\n   \n\n\n\n\n   \n\n\n\n\n\n\n\n\n\n\n   \n\n   \n\n \n\n\n   \n\n   \n\n  \n\n\n   \n\n  \n\n \n\n\n   \n\n  \n\n \n\n\n   \n\n  \n\n  \n\nreceived u.. SEP 1 3 2002 DESEGREGATION MONITORING IN THE UNITED STATES DISTRIC/it\n^ 'LEfik  EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF AO 72A V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. I, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM OPINION I I DEFENDANTS INTERVENORS INTERVENORS AO72A I. n. m. IV. INDEX Introduction Page .. 1 The Long History Of Desegregation Litigation In Pulaski County A. B. C. D. E. F. G. H. 1. J. K. 1956 Through 1973 ......................................................... 1973 Through 1982 ..................................................... Interdistrict Litigation And Interdistrict Relief........... The 1990 Settlement Agreement And Settlement Plans 11 11 13 16 20 LRSDs Implementation Of Its Desegregation Obligations Between 1991 And 1995 ......................................................................................................................... Joshuas Request For An Interim Award Of Attorneys Fees For Performing Monitoring Activities After The 1990 Settlement............................................ LRSDs First Attempt To End Federal Court Jurisdiction ............................. The Perplexing Final Resolution Of Joshuas Request For Still More Attorneys Fees From LRSD............................................................................... Final Approval Of Revised Desegregation And Education Plan.................... LRSDs Implementation Of Its Obligations Under The Revised Plan 24 33 36 38 45 46 LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan 50 Relevant Provisions Of Revised Plan A. B C. D. E. F. G. H. I. LRSDs Obligation Of Good Faith ......................... LRSDs Obligations Regarding Student Discipline 52 55 55 LRSDs Obligations To Improve And Remediate The Academic Achievement Of African-American Students ............................................................. LRSDs Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors............................................... LRSDs Obligations To Develop Remedies, Where Appropriate, For Racial Disparities In Programs And Activities............................................................. Procedure For Raising Compliance Issues................................................. Duration Of Revised Plan ..................................... Procedure For Seeking Unitary Status............................................................... Effect Of LRSDs Failure To Meet Specific Goals In The Revised Plan Controlling Principles Of Law A. B. C. D. E. The Evolving Concept of Unitary Status............................ Applicable Standard For Determining If LRSD Is Unitary Burden Of Proof...................................................................... Meaning Of Substantial Compliance............................... 56 56 57 57 59 59 60 60 60 69 72 75 The Metaphysics Of Using The Achievement Gap As A Factor In Deciding Unitary Status....................................................................................................... 77 -i-AO72A V. VI. vn. vni. Findings Of Fact A. B. C. D. E. F. G. Good Faith...................................................... Student Discipline ........................................ Extracurricular Activities............................. Advanced Placement Courses........... Promote Participation and Remove Barriers Identify and Encourage ............................... Assist.............................................................. Guidance And Counseling............................ Academic Achievement ................................ Program Assessment/Program Evaluation ., Conclusions Of Law A. B. C. D. E. F. G. H. Unitary Status................ Burden Of Proof........... Substantial Compliance Good Faith.................... Student Discipline .... Academic Achievement Partial Unitary Status .. Time To Fly.................. Compliance Remedy Conclusion -ii- 85 86 95 114 123 123 132 135 136 138 150 160 160 160 160 161 161 163 165 168 170 173IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS LITTLE ROCK DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF AO72A V. No. 4:82CV00866 WRW/JTR PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1,ETAL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. MEMORANDUM OPINION' I. Introduction^ 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\nseparate 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 'It 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 if I 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. ^As a Bryan Gamer 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.January 31,1989\nand a separate Interdistrict Settlement Plan? LRSD v. PCSSD, 921F.2dl371 (S* 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 ofLRSD, 949 F.2d 253,255 (8* Cir. 1991), and a sure guide for ending this dispute and getting the parties out of court. LRSD V. PCSSD, Supp. 1491,1494 (E.D. Ark. 1991), order vacated, 949 F.2d 253 (Sth Cir. 1991). In the years following the Eighth Circuits 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).' Subsequently, the district court and Eighth Circuit established guidelines for allowing the parties ^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, because they were not approved by the Eighth Circuit until December 12,1990, LRSD V. PCSSD, 921 F.2d 1371 (8* Cir. 1990), the parties and the district court generally have referred to these settlement documents as the 1990 Settlement Agreement, the 1990 Settlement Plans, and the 1990 Interdistrict 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.2d253,254 (8* 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 district 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 Agreement and the four separate Settlement Plans. LRSD, 921 F.2d at 1388. -2- AO72A to make agreed changes to the details of the Settlement Plans, as long as they did not affect the major substantive commitments to desegregation embodied in those Plans. Appeal of LRSD, 949 F.2d at 256\nsee also LRSD, 769 F. Supp. 1491\nLRSD v. PCSSD, F. Supp, 1483 (E.D. Ark. 1991), order vacated, 949 F.2d 253 (8* 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 LRSDs 1990 Settlement Plan and the Interdistrict Settlement Plan. A copy of LRSDs modified settlement plan and interdistrict plan, referred to as LRSDs May 1992 Desegregation Plan and the May 1992 Interdistrict Desegregation Plan  were attached to the courts 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 of LRSDs 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) entered into Oil January 3,1984, minor petitioners, comprising a group of African-American public school children enrolled in the three Pulaski County school districts, filed a Petition to 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 African- American 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- AO72A (RavA/A?) protracted negotiations to modify various aspects ofLRSDs 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. 3107 and 3136).* On April 10, 1998, the district court entered an Order (docket no. 3144) approving the Revised Plan, which it viewed as an entirely new consent decree or settlement agreement between LRSD and Joshua.* Unlike LRSDs 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 (8* Cir. 1995). Either pronoun usage is correct, as long as the reader understands how the Court is defining Joshua. ^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)\nb. c. The Magnet School Stipulation dated February 27, 1987\nOrder dated September 3, 1986, pertaining to the Magnet Review Committee\nd. The M-to-M Stipulation dated August 26, 1986\nand, 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. During the hearings on unitary status, the Revised Plan was introduced into evidence as ex 871. in its April 10 Order, the district court concluded, in the alternative, that, even if the Revised Plan was considered to be a modification ofLRSDs 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\nLRSD, 921 F.2d at 1387. AO72Aand time schedule under which LRSD might achieve unitary status: SECTION 11: Unitary Status. At the conclusion of the 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSDs compliance with the Revised Plan. Any party challenging LRSDs compliance bears the burden of proof. If no party challenges LRSDs compliance, the above-described order shall be entered without further proceedings. (Emphasis added.) Because none of the parties appealed the district courts April 10 Order approving the Revised Plan, it became a final consent decree, which now governs LRSDs desegregation obligations and establishes the path that LRSD must follow to achieve unitary status and release from federal court supervision. On March 15,2001, LRSD filed a Request for Scheduling Order and Compliance Report In most school desegregation cases, a federal courts 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 courts jurisdiction ends. Swann v. Charlotte-Mecklenburg Bd. ofEduc., 402 U.S. 1, 15-16 (1971). In Green v. County School Bd. of New Kent County, 391 U.S. 430, 435-38 (1968), the Court identified the following areas of a school districts operations that must be carefully examined in determining whether it has successfully converted \"to a unitary system in which racial discrimination [has been] eliminated root and branch: (1) student assignment\n(2) faculty and staff assignment\n(3) transportation\n(4) extracurricular activities\nand (5) facilities. These so-called Green factors establish the floor for a school districts compliance with its constitutional obligations under the Fourteenth Amendment. Thus, in all school desegregation cases, a school districts 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- I AO72A(docket no. 3410),' 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 LRSDs Compliance Report (docket no. 3447), which vigorously challenged LRSDs contention that it was entitled to a declaration of unitary status and argued that LRSD was not in substantial compliance 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 ChiefDistrict 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 grounds'' for challenging LRSDs request for unitary status: first, that LRSD had not acted in good faith in implementing its desegregation obligations ( 2.1 of the Revised Plan)\nsecond, that LRSD was not in substantial compliance with its obligations regarding student discipline ( 2.5 through 2.5.4 of the Revised Plan)\nand 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 designated the week of = January 28,2002, to hear no more than five additional days of testimony regarding the last three 'During the hearings on unitary status, the Final March 15,2001 Compliance Report was introduced into evidence as CX 870. \"In 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- A0 72A ! 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)\nextracurricular activities ( 2.6 and 2.6.3 of the Revised Plan)\nand guidance counseling (2.6.1 of the Revised Plan) (docket no. 3597 at 31-37).Judge Wright made it clear that, after she had heard the testimony concerning these last three areas of LRSDs 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, Judge Wright determined that it was the appropriate time 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). 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 Judge Wright also ruled that Joshua could present non-cumulative evidence regarding: (a) LRSDs lack of good faith in implementing its obligations regarding advanced placement courses, extracurricular activities, and guidance counseling\nand (b) the ways in which LRSDs failure to substantially comply with its obligations regarding advanced placement courses and guidance counseling adversely impacted the academic achievement of Afncan-American students. InITgSDv. 148 F.3d 956,967(8'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 Courts 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. Of course, the five days of evidentiary hearings that Judge Wright had scheduled for the week of January 28,2002, were cancelled. -7- t 1 AO72A(docket no. 3580) and Supporting Memorandum Brief (docket no. 3581). On May 9, 2002,1 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 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 LRSDs Motion for an Immediate Declaration ofUnitary 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, 2002,1 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 LRSDs Motion for an Immediate Declaration ofUnitary Status (docket no. 3604). On June 7,2002, LRSD filed a Reply Brief in Support of Motion for an Immediate Declaration ofUnitary Status (docket no. 3607). Dunng the week of July 22,1 completed the evidentiary hearings to develop the facts 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- I A0 72A case.5 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. 1 have learned that desegregation cases are invariably complex, involve difiicult-to-understand jargon, and frequently generate book-length appellate decisions, with seemingly obligatory concurring and dissenting opinions. Of course, 1 have found none of these discoveries to be surprising. After all, the issue of desegregation goes to both the heart of the Fourteenth Amendments promise of equal protection and the dark soul of what was, in many parts of the country in the 195O'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 (1954) (^Brown r}, 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.' Three years later, Little Rock suddenly found itself at 1 the epicenter of this countrys 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 Afiican-American students to Central High School. Arkansass Governor, Orval Faubus, ostensibly supported that plan, which, if This 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 Clerks office. 'The 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) i^Brown IT}. -9- AO72A /OcM Q/OO\\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 from entering Central.'^ Faubus, who was known as somewhat of a moderate up to that time, shamelessly farmed the flames of racism under the rubric of states rights, interposition, and the like. Thus, Little Rock became the first great legal battleground in the long struggle to desegregate this countrys 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. Without at least some understanding of that history, it is impossible to appreciate the deep passions this case still stirs in the litigants, lawyers, and judges who have been involved in almost five decades of continuous, unremitting school desegregation litigation in Pulaski County. '^Faubus, of course, cited public safety concerns as his 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). '^In 1956, the plaintiffs in Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956), filed suit against LRSD to force it to desegregate pursuant to the Courts holding in Brown L In 1964, the plaintiffs filed Clark v. Board ofEduc. of LRSD as a continuation of the desegregation action -10- AO72AII. The Long History Of Desegregation Litigation In Pulaski County A. 1956 Through 1973 hiLRSD V. PCSSD. 584 F. 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. In his scholarly decision. Judge Woods described: the operation of LRSD in 1930, when it was a de jure segregated school district operating under the separate but equal doctrine\n the Courts 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 Governor Faubus use of Arkansas National Guard troops at Central to place it off limits to Afiican-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 t commenced against LRSD in Aaron v. Cooper. See Judge William Overtons July 9, 1982 Memorandum and Order in Clark, a copy of which, marked Exhibit 1, is attached to LRSDs Memorandum Brief in Support of Motion for an Immediate Declaration ofUnitary Status (docket no. 3581). On November 30,1982, LRSD initiated this action against the PCSSD, NLRSD, and the Arkansas Board of Education seeking 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. Plessy V. Ferguson, 163 U.S. 537 (1896), overruled by Brown I, 347 U.S. 483 (1954). ^^See 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 Courts holding in Brown. United States District Judge John E. Miller entered a decree on August 27, 1956, approving LRSDs 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 (8* Cir. 1957). -11- AO72A(E.D. Ark. 1957)\n^' the nine courageous African-American students entering Central on September 23, 1957, in the face of a large, threatening mob of whites\nand, finally. President Eisenhower dispatching troops to Central to ensure the safety of the African-American students and to enforce Judge Davies desegregation order.^ 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 in the hysterical political atmosphere of that period. LRSD, 584 F. Supp. at 334. In 1966, the Eighth Circuit approved LRSDs freedom of choice desegregation plan, which remained in effect through the 1968-69 school year. Clark v. Board of Education of LRSD, 369 F.2d 661 (8* Cir. 1966). Significantly, in its decision, the Court noted LRSDs good faith commitment to desegregation: Many of the problems encountered are not of the Boards 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. 2'ln 1957, the Eighth Circuit assigned Judge Davies, of Fargo, North Dakota, to preside over Aaron. On September 21, 1957, Judge Davies issued an injunction ordering Governor Faubus, the Adjutant General of the State of Arkansas, and Lieutenant Colonel Marion E. 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 Rock 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). Scenes of angry mobs of white protesters confronting the nine African-American students as they entered Central and, later, troops of the 101  Airborne Division rolling across the Broadway Bridge to restore order in Little Rock are still deeply etched in the minds of many Arkansans. -12- AO72AId. at 666? 23 In Green v. County School Board of New Kent County, 391 U.S. 430,439-40 (1968), the Court held that school districts such as LRSD, which were the product of de 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. Clark V. Board of Education ofLRSD, 426 F.2d 1035, 1043 (8* Cir. 1970). In the 1971-72 school year, LRSD began crosstown busing to achieve racial balance in grades 6 through 12. Clark v. Board of Directors ofLRSD, 328 F. Supp. 1205,1209,1214 (E.D. Ark. 1971, rev W in part, 449 F.2d 493 (S* 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 (8* Cir. 1972). Finally, during the 1972-73 school year, all LRSD schools and all LRSD grade levels were racially balanced. I B. Events Leading To Initiation Of This Action On July 9,1982, United States District Judge William R. Overton entered a Memorandum and Order in Clark which contained many of the findings that underpinned LRSDs subsequent ^^Likewise, 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- AO72Adecision to file this action?\"* In many respects, Judge Overtons 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\n(2) the district has done an admirable job in the task of desegregation\nand (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 ofdiscrimination 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).^^ 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 of LRSD elementary schools in 1973- 74, there has been a steady trend of increasing black enrollment and decreasing white enrollment 1 ^As indicated previously, a copy of Judge Overtons July 9, 1982 Memorandum and Order is attached as Exhibit 1 to LRSDs Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581). ^Eleven 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 Wrights Statement to LRSD Board of Directors and Counsel on March 19,1993, attached as Exhibit 1 to Joshuas August 1,1996 Memorandum in Opposition to LRSDs Motion to End Federal Court Jurisdiction (docket no. 2730). I I -14- AO72Ain the elementary schools ... and [to a lesser extent] in the upper grades\n^ (2) despite LRSDs efforts to modify student assignment plans to correct the growing disparity in the black-white student ratio in elementary schools, [a]ll 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\nand (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 of black 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 LRSDs Memorandum Brief in Support of Motion for an Immediate Declaration ofUnitary 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,^ 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. ^*In 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% of high 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 LRSDs Memorandum Brief in Support of Motion for an Immediate Declaration ofUnitary Status (docket no. 3581). I ^This was a shorthand reference for LRSDs desegregation plan for children attending kindergarten through the sixth grade. -15- AO72A a/oo\\Booker Junior High School became an intermediate school\na magnet school was to be created west of University Avenue\nand 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 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.^ 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 actiona new case^against PCSSD, NLRSD, the State of Arkansas, and the Arkansas Department of Education (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 PCSSD ^Judge Overtons July 9 decision approved LRSDs Partial K-6 plan as a stop gap student assignment plan for elementary grades. The Eighth Circuit later affirmed that decision in Clark V. Board of Educ. of LRSD, 705 F.2d 265 (8 Cir. 1983). 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 LRSDs Memorandum Brief in Support of Motion for an Immediate Declaration ofUnitary Status (docket no. 3581). Because 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- AO72A ta^, a\npo\\ Iand 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 LRSDs Complaint, Judge Woods entered a Memorandum Opinion setting forth detailed findings of fact and conclusions of law to support his determination 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 ?' 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 Judge Woods made 105 specific findings of fact and drew 14 conclusions of law to support his determination of the issue of liability. On appeal, the Eighth Circuit affirmed all of those findings of fact and conclusions of law. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8* Cir. 1985). -17- AO72A (Rev.8/821 two expert witnesses to suggest three options\n(1) altering boundary lines in accordance with the NLRSD plan\n(2) altering boundary lines to transfer other geographic areas among all three districts\nor (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.^^ 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, PCSSD, and NLRSD\nand (b) had remedial responsibilities with respect to this case. Judge Woods noted that the precise nature of [the State/ADEs] 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 in LRSD, 584 F. Supp. 328, and LRSD, 597 F. Supp. 1220. The Eighth Circuit, sitting en banc, affirmed Judge Woods  finding on liability for interdistrict constitutional violations by PCSSD, NLRSD, and the State/ADE, but reversed his remedy of consolidation^ on the ground that, while the interdistrict violations of the Constitution called for an interdistrict remedy, consolidation of the three school ^Thus, the cat had been belledfor the time being. The cat was not long belled. -18- AO72A (Rev.8/82) districts was not required. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8\" Cir. 1985). Rather than remanding the case to the district court for further findings and a detailed remedial decree, the Court spelled out its own interdistrict remedy?^ 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 PCSSD and LRSD\nrevising 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\nencouraging intradistrict and interdistrict M to M transfers\nand 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 Tl, 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 Judge Woods later wrote an article in the Arkansas Law Review critiquing the Eighth Circuits decision. Judge Henry Woods and Beth Deere, Reflections on the Little Rock School Case, 44 Ark. L. Rev. 971 (1991). ln 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 of its 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- AO72AAO72A zone. After a student was assigned to a school, the students 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 Coxmty 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.^^ 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), revd., 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 LRSDs 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, ^'The Knight Intervenors are members of the LRSD Classroom Teachers Association. -20-the parties submitted the following final settlement documents^ to Judge Woods: (a) The Pulaski County School Desegregation Case Settlement Agreement/ which, among other things, fixed the State/ADEs total financial liability to the three school districts to be an amount not to exceed $129,750,000/ and (b) separate comprehensive Settlement Plans for LRSD, NLRSD, and PCSSD and a comprehensive Interdistrict Settlement Plan. Judge Woods rejected each of the four separate Settlement Plans'*' and the 1990 Settlement Agreement,**^ as submitted\n^^See footnote 3, supra, for an explanation of the terminology I will use in referring to these settlement documents. A copy of the 1990 Settlement Agreement is attached to LRSDs and Joshuas Joint Motion seeking approval of that agreement (docket no. 1174). The 1990 Settlement Agreement contained detailed provisions governing the State/ADEs 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. As indicated previously, these four Settlement Plans contained the detailed desegregation obligations that LRSD, PCSSD, and NLRSD contractually agreed to implement under the district courts supervision. See footnote 3, supra. 41 Judge Woods refused to approve the Settlement Plans because he believed they were facially imconstitutional and outside the mandate of the Eighth Circuit: In LRSDs 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 of University Avenue, 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. Judge 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 1164. -21- AO72Aordered the parties to implement a more comprehensive plan known as the Tri-District Plan\nappointed Eugene Reville to the position of Metropolitan Supervisor\nand conferred upon Mr. Reville a wide array of powers over all three school districts that, in many respects, closely resembled consolidationthe 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\napproved it, as modified\nand 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 ofthe $3,150,000 in attorneys fees that the parties had agreed to pay to Joshuas counsel. Id. at 1554-56.\" Each ofthe school districts and Joshua appealed the district courts 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 \"Under the terms of the 1990 Settlement Agreement, Joshuas counsel was to be paid attorneys fees of $3,150,000, which the parties agreed should be allocated as follows: LRSD: $2,000,000\nthe State/ADE: $750,000\nPCSSD: $300,000\nand NLRSD: $100,000. LRSD, 921 F.2d at 1390. -22- AO72A (Rev.a/82) 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 contexta 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 nonewe are reluctant to disregard their judgment as to what is best for their own clients. Id. at 1386. Second, the Court explicitly recognized the important role of future monitoring in 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 supervisionmonitoring, at leastfor a long time. Id. at 1383 (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- A0 72A IFinally, 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)\n*' State/ADE ($750,000)\nPCSSD ($300,000)\nand 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. LRSDs Implementation Of Its 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 LRSDs 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- AO72ANLRSD. 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.'*^ Thus, one of Judge Wrights 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\nand (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, Arma 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 In 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. For reasons 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- AO72A (Rev.8/82)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 Circuits order of December 12, 1990, and this Courts 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.'* 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.' '*ln an Order entered August 18,1993 (docket no. 1947), Judge Wright emphasized that, while the State/ADE was no longer a formal party in this action, it is the law of the case that the Court retains jurisdiction to ensure that the parties, including the State, comply with the terms of the settlement agreement as well as the settlement plans. In an Order entered December 10, 1993 (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 Section III ofthe 1990 Settlement Agreement as the Arkansas Department of Education monitoring plan. In then- pleadings, the parties often refer to this latter document as the Allen letter. 'The 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. Revilles 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 ofthe 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 ofthe ODM. The balance ofthe 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 ofthe three school districts. For example, the ODMs 2000-01 fiscal year budget of $784,188 was allocated among the parties as follows\n-26- AO72ADuring 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 Circuits 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,92\\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 AO72A zPou ain'\u0026gt;\\ LRSDs share PCSSDs share NLRSDs share (47.64% of total Pulaski County enrollment) (35.36% of total Pulaski County enrollment) (17.00% of total Pulaski County enrollment) $278,307.16 206,568.88 99.311.96 $584,188.00 On September 28,2001, Judge Wright entered an Order (docket no. 3522) approving the ODMs 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. Marshalls 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: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 1989-90 $353,710.24 (docket no. 1246) 1990-91 $293,833.74 (docket nos. 1391 \u0026amp; 1405) 1991-92 $591,557.52 (docket no. 1497) 1992-93 $578,060.81 (docket nos. 1822 \u0026amp; 1836) 1993-94 $646,617.00 (docket nos. 2055 \u0026amp; 2155) 1994-95 $661,768.00 (docket nos. 2359 \u0026amp; 2380) 1995-96 $631,273.00 (docket nos. 2567 \u0026amp; 2599) 1996-97 $730,756.00 (docket nos. 2852 \u0026amp; 3001) 1997-98 $730,716.00 (docket nos. 3158 \u0026amp; 3167) 1998-99 $751,639.00 (docket nos. 3158 \u0026amp; 3167) 1999-00 $764,872.00 (docket nos. 3361 \u0026amp; 3364) 2000-01 $784,188.00 (docket nos. 3361 \u0026amp;3364) 2001-02 $707,071.00 (docket nos. 3509 \u0026amp; 3522) Thus, in the twelve years since its creation, the ODM has requested that LRSD, PCSSD, 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.' 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\nand (b) she viewed the Eighth Circuits 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 courts 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. 'Among the changes the parties sought to make in the four 1990 settlement plans were the following: (1) deleting from PCSSDs settlement plan major portions of the section on special education, especially concerning handicapped children\n(2) eliminating provisions in PCSSDs settlement plan addressing issues related to black students being disciplined disproportionately\n(3) removing several programs from PCSSDs settlement plan aimed at improving student achievement\n(4) deleting from PCSSDs settlement plan the parties agreement to abide by fourteen guiding principles which apply to the process of permanent plan development\n(5) eliminating from LRSDs settlement plan science and social studies as core areas emphasized in remediation programs at the secondary level\n(6) changing LRSDs 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\n(7) changing LRSDs settlement plan to delay the development of parent home study guides and computer managed instructional technology for tracking student progress\n(8) changing LRSDs settlement plan by eliminating staff positions for program specialist and specialist for alternative classrooms\nand (9) changing the interdistrict plan to reduce from six to four the number of interdistrict schools planned for the future. LRSD, 769 F. Supp. at 1484-87. I -28- AO72AAppeal of LRSD, 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 Courts 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 solenrn 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. 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 maybe 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\n(2) operation of the agreed number of magnet schools according to the agreed timetable\n(3) operation of the agreed number of interdistrict schools according to the agreed timetable\n(4) intradistrict desegregation of PCSSD according to the agreed timetable\n(5) the agreed effort to eliminate achievement disparity between the races\n(6) the agreed elements of early-childhood education, at least in the incentive schools\nand (7) appropriate involvement of parents. 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- AO72A (Rev.8/82)Id. (emphasis added). On May 1, 1992, Judge Wright entered an Order approving most of the proposed modifications to LRSDs 1990 Settlement Plan and the Interdistrict Settlement Plan, which the parties referred to as LRSDs 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). LRSDs 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 LRSDs School Board and attorneys explaining the importance of LRSD fully and completely implementing its desegregation obligations under the Settlement Plans\nSince 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. Y et 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 Wrights Statement to LRSD Board members and Counsel at 2-3 and 6, attached as -30- AO72A! Exhibit 1 to docket no. 2730.^ Between 1991 and 1996, almost all of the district courts Orders involving LRSD related to the following issues\nthe approval of LRSDs annual budgets (docket nos. 1759,1897, 1958, 2216, 2280, 2319, and 2709)\nLRSDs closing of certain elementary schools (docket nos. 1926 and 2351)\nand LRSDs 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 (8 Cir. 1992)\n(2) upheld the new zoning plan for electing school board members for LRSD and PCSSD, LRSD v. PCSSD, 56 F.3d 904 (8'\" Cir. 1995)\nand (3) clarified language in the 1990 Settlement Agreement regarding the States funding obligations to LRSD, PCSSD, and NLRSD, LRSD v. PCSSD, 83 F.3d 1013 (8' 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.^' 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 In People Who Care v. Rockford Board of Education, 246 F.3d 1073, 1078 (7'*' 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. As indicated previously. Attachment B is 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- AO72A fRftvDistrict No. 1, 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 courts 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 LRSDs 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 of its agreements (although some improvements have been made). Therefore, the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and the agreement. Even had the LRSD acted in good faith throughout the years, the logistics and complexity of this case are such that this Courts monitoring function would be impaired by entering an order of dismissal at this time. i LRSD appealed that decision to the Eighth Circuit. On December 15, 1997, the Court reversed and remanded 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 (8'* 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 Districts 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- AO72A (Rgv.8/82)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 th is case and cases consolidated herein, including, but not limited to. Cooper v. Aaron, Norwood V. Tucker, and Clark v. 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 Clerks office so that the Court can continue to perform its ongoing duties regarding the supervision and implementation of the desegregation plans. F. Joshuas 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 of attorneys 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\nLRSD: 75% to 80%\nNLRSD: 5% to 10%\nand PCSSD\n15% to 20%with the final percentages totaling -33- AO72A /Dm.100% (docket no. 2792). LRSD filed a Response and Supporting Memorandum of Law (docket nos. 2636 and 2637) challenging Joshuas 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 Joshuas counsel $2,000,000 in attorneys fees in connection with the 1990 settlement, Joshuas 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 wasnt 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. Thats 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 courtfor enforcement purposes and in that instance we ll simply be free to make an application if we think we 're entitled to it. i j i JUDGE RICHARD S. ARNOLD: Alright, thank you. Now, Mr. Heller, you are recognized. -34- AO72A (Rev.8/82)CHRIS HELLER, ATTORNEY FOR LRSD: * * * Id 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 Joshuas counsel during the life of the Settlement Plans. Therefore, Judge Wright ruled that Joshuas counsel was not entitled to recover any attorneys fees from LRSD for performing monitoring activities. On October 3,1996, Joshuas 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 attorneys fees. On March 24, 1997, Judge Wright entered an Order (docket no. 2959) denying Joshuas Motion for Reconsideration. On April 22, 1997, counsel for Joshua filed a Notice of Appeal (docket no. 2966) of the district courts 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- AO72AG. LRSDs 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\n(2) it had implemented the Settlement Plan, beginning with the 1990-91 school year, and Ihe six year term of the Plans will expire at the end of the 1995-96 school year\nand (3) LRSD has implemented in good faith many desegregation plans for more than three decades. LRSD was a substantially unitary school district in 1982, but it nevertheless filed this interdistrict litigation in a good faith effort to maintain a biracial public school system in Little Rock. A recent and exhaustive audit of LRSDs desegregation obligations shows that LRSD is in substantial compliance with the Plans. Docket no. 2665. On August 1, 1996, Joshua filed a Memorandum Opposing LRSDs Motion to End Federal Court Jurisdiction (docket no. 2730) in which they challenged LRSDs 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 LRSDs 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 LRSDs 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\n and (2) -36- AO72ALRSD 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 I (docket no. 2878) that requested Judge Wright: (1) 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\n(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\nand (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 Intervenors, PCSSD, and NLRSD supported its request. -37- AO72A (Rev.8/82) iOn December 18, 1996, Joshua filed a Response (docket no. 2891) that did not oppose LRSDs request for an interval of time to develop a new desegregation plan, but expressed reservations about ODM, as an arm 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 themthe alleged ill-treatment of class members. On December 27, 1996, Judge Wright entered an Order (docket no. 2901) granting LRSDs 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\nand (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 Joshuas 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 Joshuas Request For Still More Attorneys Fees From LRSD 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 no. 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 Joshuas request for $795,301 in attorneys fees for performing post-settlement monitoring i -38- AO72A (Rev.8/82)activities, which was pending on appeal to the Eighth Circuit?^ On January 21,1998, LRSD and Joshua filed a Joint Motion for Approval of LRSDs 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 Joshuas 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 of LRSDs 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 Wrights March 24, 1997 Order denying Joshuas request for interim attorneys fees. The entry of this voluntary Judgment dismissing Joshuas 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 10,1998,^ LRSD and Joshua formally documented their ^^As indicated previously, on April 22, 1997, Joshua appealed Judge Wrights 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. The 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 ofUnitary 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 Joshuas 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 LRSDs 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 Joshuas past and future attorneys fees. Therefore, my -39- AO72A O/OO\\ 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\n$100,000.00 on or before August 31,1998\nand $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 attorneys 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 LRSDs Memorandum Brief in Support of Motion for an Inunediate Declaration ofUnitary Status (docket no. 3581) (emphasis added).^ Although not directly relevant to the issue of unitary status, I can think of no good explanation for LRSDs decision to voluntarily pay Joshuas 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 Joshuas 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 while 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 LRSDs decision to file its counsels June 10, 1998 letter as an exhibit to its March 15, 2002 Memorandum Brief in Support of Motion for an Immediate Declaration ofUnitary Status that alerted me to this issue. ^As indicated previously, Joshuas 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 for paying Joshuas counsel between $596,475 and $636,240. I am at a loss to understand why LRSD would agree, in the June 10, 1998 letter, to voluntarily pay Joshuas counsel $700,000, almost $ 100,000 more than the median amount Joshuas counsel originally sought to recover from LRSD for his post-settlement monitoring work. -40- AO72Aexpended in connection with monitoring activities.^ It appears to me that Judge Wrights well- reasoned Memorandum Opinion (docket no. 2821) denying Joshuas Request for an Interim Award of Attorneys Fees and her subsequent Order (docket no. 2959) denying Joshuas Motion for Reconsideration placed LRSD in an excellent position to prevail on Joshuas appeal of the district courts 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 Joshuas counsel an additional $700,000 for post-settlement monitoring work when, as stated above, one of Joshuas other attorneys admitted this work was already included in the $2,000,000 LRSD paid to Joshuas 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 Joshuas counsels request for a large interim award of attorneys fees. i 1 i i t 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, Joshuas counsel has fought hard for his clients and has a well-documented record of zealously protecting their interests. I also recognize that Joshuas 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 publics perception of the timing of these eventswhich I fear has raised troubling questions and lingering doubts. See supra, pp. 34-35. -41- AO72A (Rev.8/82)I also find it unsettling that, going forward, LRSD agreed to pay Joshuas 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 Joshuas counsel owed to LRSD, the party paying his fees for monitoring the implementation of the Revised Plan, and whether, under this arrangement. LRSD and Joshuas 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, Joshuas counsel specifically agreed to undertake the obligation of monitoring all aspects of LRSDs implementation of the Revised Plan. Subsequently, Joshuas 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.^ See Exhibit 8 to docket no. 3581. According to Joshuas counsels 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\nNovember, 1998, through October, 1999: $48,333.33\nNovember, 1999: $4,027.78\nDecember, 1999: $4,027.78\nJanuary, 2000, through May, 2000: $20,138.90\nJune, 2000: $4,027.78\nJuly, 2000: $4,027.78\nAugust, 2000, through September, 2000: $8,055.56\nOctober, 2000: $4,027.78\n5*As discussed infra at pp. 57-59, at no point between the district courts approval of the Revised Plan on April 10,1998, and the filingofLRSDsCompliance Report on March 15,2001, did Joshuas 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- AO72A (Rev.8/82)November, 2000: $4,027.78\nDecember, 2000: $4,027.78\nand January, 2001: $4,027.78. See Exhibit 8 to docket no. 3581.^ Thus, for each month between July, 1998, and January, 2001, LRSD paid Joshuas counsel $4,027.78 for attorneys fees incurred monitoring LRSDs implementation of the Revised Plan. For good reason, there is a widespread public perception that this case has become a decades-old cottage industryand a large one at thatfor 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 Joshuas counsel hangs like the sword of Damocles above the heads of all the parties.^ 'The record fails to contain an explanation of why Joshuas counsel did not submit Statements for Legal Services Rendered for the months of February through June, 2001. 5As 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 repair or renovation 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, 1 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 AO72A ZOa*/ OZOO^All members of the professional group, who have directly benefitted from the perpetuation of this case, are placed on notice that 1 intend to monitor closely the costs associated with this action. Being bom 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 districts 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 LRSDs 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 Joshuas 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 ofLRSDs 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- AO72A (Rev.8/82)AO72A 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. b. c. d. e. The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 (Settlement Agreement)\nThe Magnet School Stipulation dated February 27, 1987\nOrder dated September 3, 1986, pertaining to the Magnet Review Committee\nThe M-to-M Stipulation dated August 26, 1986\nand. 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, 1998 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, she would still approve the Revised Plan because As indicated supra at p. 27, LRSD and Joshua agreed to certain changes in LRSDs 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 Interdistrict Desegregation Plan. Judge Wrights April 10, 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-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. 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)\nTestimony of Dr. David J. Armor at 18-39 (docket no. 2693)\nand Testimony of Dr. Gary Orfield at 25-31 (docket no. 2768). J. LRSDs 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 LRSDs implementation of its obligations under the Revised Plan. In fact, only three documents dealing with LRSDs In 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- A0 72A (Ravimplementation 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 LRSDs preparations for implementation of the Revised Plan. This Report reviewed the status of LRSDs implementation of a// aspects of the Revised Plan, including the following areas that have special relevance to Joshuas opposition to LRSDs pending request for unitary status\nExtracurricular Enrichment Activities (pp. 12-16)\nLearning Environment (pp. 20-22)\nMathematics (pp. 27-31)\nProgram Assessment (pp. 42-43)\nReading and Language Arts (pp. 44-48)\nRemediation (pp. 49- 52)\nand Student Discipline (pp. 67-71). The ODMs 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 i compliance and to reassure the court, the parties, and the community of the Districts good faith efforts to be in total compliance with the Revised Plan\nand (2) [t]he District hopes to receive comments and suggestions from interested persons as to the Districts 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 LRSDs Interim Compliance Report. Likewise, nothing contained in that Report caused Joshuas counsel. -47- AO72A 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 Jrme 14,2000, the ODM filed a 127-page Report of Disciplinary Sanctions in the LRSD (docket no. 3366).^' The introduction to this Report contained a broad disclaimer of what was not being evaluated: This document neither evaluates the districts 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 districts general approach to discipline and to set the context for our findings, but our report focuses on the LRSDs own records and what they reflect. Report of Disciplinary Sanctions at 1 (docket no. 3366). Furthermore, because LRSD maintained disciplinary records on only suspensions and expulsions, the Report was limited to an examination of LRSDs raw data, broken down by race and sex, for students who were *'The ODM prepared this Report as part of its ongoing monitoring of the way all three Pulaski Coimty school districts imposed disciplinary sanctions on students. In previous years, the ODM had prepared similar Reports on NLRSD and PCSSD. Thus, the ODMs June 14 Report was not triggered by or related to anything in LRSDs March 15, 2000 Interim Compliance Report. I By 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 A0 72A fRot/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 African- American 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.^ Additionally, because LRSD administrators assigned many of the suspended or expelled students to alternative education programs^ 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 LRSDs 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 academically and The preface to the Report made it clear that the disproportionate number of Afiican- American 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. See Report at 10-12. -49- AO72A (Rev.aZ82) 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 Reports Conclusions, the ODM made two primary criticisms of LRSDs disciplinary practices\n(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 i overall\nand (2) [w]hile the report data do not reflect overall serious behavior problems in LRSD, African-Amencan 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 15,2001, 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 LRSDs 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- AO72A (Rev.a/82)Unitary Status (docket no. 3580) and Supporting Memorandum Brief (docket no. 3581). On May 30, 2002, Joshua filed their Response in Opposition to LRSDs Motion for Immediate Declaration ofUnitary 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 the Revised Plan. Because Joshua chose to challenge LRSDs substantial compliance,  11 of the Revised Plan imposed on them the burden of proof on that issue. Joshuas counsel has acknowledged that the Revised Plan imposed on his clients the burden of proving that, as of March 15,2001LRSD 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). In its October 3,2001 Order (docket no. 3515), the district court required LRSD to elect between two options: Option 1: (A) (B) Option 2: Present evidence concerning the LRSDs activities with respect to the Revised Plan beyond the date of March 15,2001\nand Produce the e-mails requested by Joshua beyond that date. (A) (B) Present evidence concerning the LRSDs activities with respect to the Revised Plan up to the date of March 15,2001, and not beyond\nand 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 of LRSDs compliance activities that took place after March 15,2001, cannot be considered in deciding the question of unitary status. -51- AO72A (Rev.a/82)III. Relevant Provisions Of Revised Plan In Joshuas Opposition to LRSDs Compliance Report (docket no. 3447), they include a Seriatim Response to Districts March 15, 2001 Compliance Report in which they list compliance problems or concerns with the following sections of the Revised Plan: 2.1 (LRSDs obligation of good faith)\n 2.1.1, 2.2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, and 2.2.7 (LRSDs obligations regarding faculty and staff)\n 2.3 (LRSDs obligations regarding student assignment)\n 2.4 (LRSDs obligations regarding special education and related programs)\n 2.5,2.5.1,2.5.2, 2.5.3, and 2.5.4 (LRSDs obligations regarding student discipline)\n 2.6,2.6.1,2.6.2, and 2.11.1 (LRSDs obligations regarding extracurricular activities, advanced placement courses, and guidance counseling)\n 2.7 and  5 (LRSDs obligations regarding improving African-American academic achievement)\n 2.8 (parental involvement)\nand  3.6 (school construction and closing). Importantly, Joshuas Opposition to LRSDs Compliance Report was careful to note that their concerns regarding LRSDs 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 LRSDs future actions. After filing that Opposition, Joshua conducted considerable discovery to develop the facts to support their challenges to LRSDs request for unitary status. As indicated previously, before beginning the evidentiary hearings on Joshuas Opposition to LRSDs request for unitary status. Judge Wright instructed Joshuas 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- AO72A (Rev.8/821 of testimony on July 5 and 6,2001, Joshuas counsel stated that LRSDs three most serious areas of noncompliance under the Revised Plan were its failure to meet its obligations regarding: (1) good faith\n(2) improvement of academic achievement for African-American students\n 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 of LRSDs 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 LRSDs alleged noncompliance (docket no. 3558 at 14-15). After Judge Wright denied LRSDs 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 Joshuas Opposition to LRSDs 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 Joshuas counsel identified as the last three areas of LRSDs alleged noncompliance with the Revised Plan: (1) advanced placement courses\n(2) extracurricular activities\nand (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 Part of Joshuas argument that LRSD had failed to substantially comply with its obligation to improve the academic achievement of Afiican-American students included the contention that LRSD had failed to make the annual assessments of the academic programs implemented to improve the achievement of Afiican-American students as required by  2.7.1 of the Revised Plan. -53- AO72A (Rev.a/82) regarding advancedplacement courses, extracurricular activities, and guidance counseling\", and how LRSDs programs, policies, and procedures governing advanced placement courses, extracurricular activities, and guidance counseling had adversely affected the academic achievement of African-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 evidentiary hearings, did Joshua present any evidence or arguments to support the contentions in their Opposition to LRSDs 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)\nstudent assignment ( 2.3)\nspecial education and related programs ( 2.4)\nparental involvement ( 2.8)\nand school construction and closing ( 3.6). Joshuas failure to present any evidence to support their contention regarding LRSDs 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 determination of LRSDs 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: (1) good faith as set forth in  2.1\n(2) student discipline as set forth in  2.5 through 2.5.4 and 2.12.2\n(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\n(4) extracurricular activities as set forth in  2.6,2.6.3, and 2.12.2\n(5) advanced placement courses as set forth in  2.6,2.6.2, and 2.12.2\nand (6) guidance counseling -54- AO72A (Rev.8/82) as set forth in  2.11,1. The provisions of the Revised Plan containing LRSDs 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. LRSDs Obligation Of Good Faith The 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 Afiican-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. LRSDs Obligations Regarding Student Discipline Sections 2.5 through 2.5.4 set forth LRSDs 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 of race-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- AO72A (Rev.8/82)frequent misbehavior. C. LRSDs Obligations To Improve And Remediate The Academic Achievement Of African-American Students Section 2.7 contained LRSDs 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 Afiican-American students. In order to determine the effectiveness of LRSDs academic programs designed to improve Afiican-American achievement, Section 2.7.1 obligated LRSD to assess the academic \u0026gt;5 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. LRSDs 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 extracurricular 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 teachers and counselors in identifying and encouraging -56- AO72A (Rev.8/82)African-American students to participate in honors and enriched courses and advanced placement courses and required guidance counselors to work with students in an effort to provide more equity in academic honors, awards, and scholarships\nSection 2,6.2 obligated LRSD to implement programs to assist African-American students in being successful in honors and enriched courses and advanced placement courses. E. LRSDs Obligations To Develop Remedies, Where Appropriate, For Racial Disparities In Programs And Activities Section 2.12.2 provided that LRSD shall implement policies and procedures for investigating the causes of racial disparities in programs and activities and developing remedies where appropriate. Joshua made no mention of LRSDs alleged failure to substantially comply with Section 2.12.2 in their June 25,2001 Opposition to LRSDs Compliance Report (docket no. 3447). However, nearly a year later, in their May 30,2002 Opposition to LRSDs Motion for an Immediate Declaration of Unitary Status (docket no. 3604), Joshua argued for the first time that thi\nThis project was supported in part by a Digitizing Hidden Special Collections and Archives project grant from The Andrew W. Mellon Foundation and Council on Library and Information Resoources.\n   \n\n   \n\n  \n\n\n   \n\n  \n\n \n\n\n   \n\n   \n\n \n\n\n   \n\n  \n\n \n\n   \n\n \n\n  \n\n\n   \n\n \n\n  \n\n\n\n   \n\n  \n\n  \n\n\n   \n\n   \n\n  \n\n \n\n \n\n\n   \n\n  \n\n \n\n\n\n\n\n\n\n\n\n   \n\n \n\n\n\n  \n\n\n   \n\n\n\n  \n\n\n\n "},{"id":"bcas_p1532coll1_16816","title":"Linda Austin interviewed by Grif Stockley","collection_id":"bcas_p1532coll1","collection_title":"Butler Center for Arkansas Studies Audio Collection","dcterms_contributor":["Stockley, Griffin Jasper, 1944-2023"],"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Desha County, 33.83333, -91.25395","United States, Arkansas, Desha County, Mitchellville, 33.90566, -91.49901"],"dcterms_creator":["Austin, Linda"],"dc_date":["2002-08-01"],"dcterms_description":["Interview about her working relationship with Daisy Bates during Grif Stockly's research for the book Daisy Bates: Civil Rights Crusader from Arkansas."],"dc_format":["audio/mpeg"],"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":["Grif Stockley papers (BC.MSS.01.01)","Arkansas African Americans"],"dcterms_subject":["Mitchellville (Ark.)--History--20th century","African American women civil rights workers","Secretaries"],"dcterms_title":["Linda Austin interviewed by Grif Stockley"],"dcterms_type":["Sound"],"dcterms_provenance":["Butler Center for Arkansas Studies"],"edm_is_shown_by":null,"edm_is_shown_at":["http://arstudies.contentdm.oclc.org/cdm/ref/collection/p1532coll1/id/16816"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":null,"dcterms_medium":["audiocassettes"],"dcterms_extent":["two tapes, pdf"],"dlg_subject_personal":["Bates, Daisy, 1914-1999"],"dcterms_subject_fast":null,"fulltext":null},{"id":"bcas_bcmss0837_1757","title":"Plantiff's designation of testimony to be stricken, motion for additional response time, Joshua intervenor's proposed findings against Little Rock School District's (LRSD's) request for unitary status, plaintiff's proposed findings, and notice of ADE project management tool.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. District Court (Arkansas: Eastern District)"],"dc_date":["2002-08"],"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","Arkansas. Department of Education","Project management","Education--Arkansas","Little Rock School District","Joshua intervenors","School integration","Education--Evaluation","African Americans--Education","Magnet schools","Education--Finance","Teachers","School administrators","School districts"],"dcterms_title":["Plantiff's designation of testimony to be stricken, motion for additional response time, Joshua intervenor's proposed findings against Little Rock School District's (LRSD's) request for unitary status, plaintiff's proposed findings, and notice of ADE project management tool."],"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/1757"],"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":["68 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\u003cdcterms_description type=\"array\"\u003e   \n\n\u003cdcterms_description\u003eDistrict Court, order; District Court, plaintiff's designation of testimony to be stricken; District Court, Joshua intervenors' response to plaintiff's designation of testimony to be stricken; District Court, motion for additional time to file response; District Court, two orders; District Court, Joshua intervenors' proposed findings of fact and conclusions of law in opposition to the Little Rock School District's (LRSD's) request for unitary status regarding the plan sections; District Court, plaintiff's proposed findings of fact and conclusions of law; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool    This transcript was create using Optical Character Recognition (OCR) and may contain some errors.    IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION 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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For other uses, you need to obtain permission from the rights-holder(s)."],"dcterms_medium":["oral histories (literary works)"],"dcterms_extent":["1 hour, 23 minutes, 47 seconds of audio spread over 2 sides of 1 tape, and 48 page transcript."],"dlg_subject_personal":["Reagan, Ronald","Krisher, Lisa J."],"dcterms_subject_fast":null,"fulltext":null},{"id":"bcas_bcmss0837_1737","title":"District Court, order and transcript.","collection_id":"bcas_bcmss0837","collection_title":"Office of Desegregation Management","dcterms_contributor":null,"dcterms_spatial":["United States, 39.76, -98.5","United States, Arkansas, 34.75037, -92.50044","United States, Arkansas, Pulaski County, 34.76993, -92.3118","United States, Arkansas, Pulaski County, Little Rock, 34.74648, -92.28959"],"dcterms_creator":["United States. 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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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