{"response":{"docs":[{"id":"bcas_bcmss0837_1628","title":"Court filings: District Court, Joshua intervenors' memorandum in support of their motion for an award of attorneys' fees","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":["1996-09-30"],"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--20th century","Lawyers","Joshua Intervenors","Education--Economic aspects","Education--Evaluation","Educational law and legislation","Court records"],"dcterms_title":["Court filings: District Court, Joshua intervenors' memorandum in support of their motion for an award of attorneys' fees"],"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/1628"],"dcterms_temporal":null,"dcterms_rights_holder":null,"dcterms_bibliographic_citation":null,"dlg_local_right":["Available for use in research, teaching, and private study. Any other use requires permission from the Butler Center."],"dcterms_medium":["judicial records"],"dcterms_extent":["64 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors.  .  : .. ... FILEO US. DISTRICT COURT ' EASTFRN DISTRICT ARKANSAS SfP 27 1996 ~;~ES W, Mcl.iUHMA~K, CLERK SEP ~ 0 1996 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF AR.KANSAS Otfice ot Desegregation Monitorm9 WESTERN DIVISION -- -- _ .. ___ -. ___ ..,,_,, ... ~ - LITTLE ROCK SCHOOL DISTRICT, ET AL. v. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT, ET AL. MRS. LORENE JOSHUA ET AL. KATHERINE W. KNIGHT, ET AL. OEP ClfRI( PLAINTIFFS DEFENDANTS INTERVENORS INTERVENORS The Joshua Intervenors' Memorandum in Support of Their Motion for An Award of Attorneys' Fees (September 1996) The LRSD defendants sought as to LRSD an end to the requirement that the plans be implemented. The district sought an end to the court's jurisdiction, and, thereby, any role for ODM. The Joshua Intervenors filed a comprehensive response. The Joshua Intervenors prevailed on this matter when the court on September 23, 1996 denied LRSD's motion. The Joshua Intervenors are, at minimum, entitled to an award of attorneys' fees for their work on this matter as prevailing parties . .E..,__g_,_, 42 U.S.C. Sec. 1988; Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 17 F.3d 260 (8th Cir. 1994); Hatfield v. Hayes, 877 F.2d 717, 719-20 (8th Cir. 1989). 1 1 By making this motion and this argument, the Joshua Intervenors do not waive their contention that they are entitled to fee awards at this stage of the case based upon their engaging in reasonable post-judgment monitoring, irrespective of their \"prevailing\" with regard to each separate element of their work. 1 The time claimed for the efforts of Joshua counsel -- 50.16 hours is reasonable. See Declaration of Bob Pressman, para. (12.} and Attachment One. It has been described on a daily basis, based upon contemporaneous records. Id. Time is claimed for one person (lead counsel, John W. Walker's and Ms. Springer's time has been waived}. The intervenors had to take seriously an effort to end, as to LRSD, the requirement that the plans be implemented and the court's jurisdiction. The LRSD memorandum cited 40 court decisions. Preparation of a response required consideration of not only many of these decisions and others, but also, among other things: the LRSD's exhibits (numbering 17}, the text of the various plans and other documents, the testimony of witnesses Armor, Orfield, and Walberg, and the court's various findings about the quality of \"compliance\" by the officials and agents of the LRSD. The rate sought for an attorney with more than 30 years of relevant experience, much in the areas of school desegregation and racial discrimination generally, is proper. First. The rate is supported by rulings of the Court of Appeals for the Eighth Circuit. 2 Second. The rate is shown to be reasonable by reference 2 See McDonald v. Armentrout, 860 F.2d 1456, 1460, 1461 (8th Cir. 1988} (in 1988, the court noted its approval in 1986 in this case of the rate of$ 200\\hour for a Washington, D.C. \"cooperating attorney who had been in practice approximately thirty years\" and of the same rate in 1988 in the Kansas City case for \"an experienced civil rights attorney for his services in [that] school desegregation case ... \"}; Planned Parenthood Sioux Falls Clinic v. Miller, 70 F.3d 517 (8th Cir. 1995} (rates of from$ 200 to $ 260 per hour for the work of four attorneys in an appeal}; see also Joshua Intervenors' final submission in support of our earlier comprehensive fee petition documenting that the Court of Appeals for the Eighth Circuit made an award recently to lead counsel for work on the Harvell appeal at the rate of$ 250 per hour}. 2 to the ruling in Morgan y. Gittens. see Pressman Dec., para. ( 13. ) ( d) and enclosed copy of the opinion. Third. The rate is supported by the Declaration of Thomas I. Atkins and the affidavits of Geraldine Hines and Jeffrey Kabrick (attached to the motion). Fourth. The rate is supported by the survey conducted by the publication Arkansas Business. See Pressman Dec., para. (13.) (e) and survey attached thereto. Conclusion The motion should be granted, promptly. # 6404 Walker, P.A. 723 Broadway Little Rock, AR 72206 501-374-3758 ..E,\u003c,~6'~ Bob Pressman MA# 405900 22 Locust Avenue Lexington, MA 02173 617-862-1955 3 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS TALLULAH MORGAN, ET AL., Plaintiffs, ( v. CIVIL ACTION NO. 72-911-WAG ROBERT GITTENS, ET AL,, Defendants. JUDGMENT AWARDING ATTORNEYS' FEES AND EXPENSES This action came on for hearing before the Court, Honorable w. Arthur Garrity, Jr., District Judge presiding, on plaintiffs' applications for attorneys' fees and expenses pursuant to 42 U.S.C. section 1988, and the issues having been duly heard and a - decision having been duly rendered on the basis of the findings of fact and conclusions of law stated in the Memorandum of Decision filed contemporaneously herewith, It is Ordered and Adjudged that the plaintiffs Tallulah Morgan et al. recover of the defendants Robert Gittens et al. the sum of $228,162.69, of which $128,162.69 shall be paid to Thomas I. Atkins, Esq., and $100,000 to the Law and Education Center, Inc., for the services of Robert Pressman, Esq. Dated at Boston, Massachusetts, this 3_L day of January, 1996. UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS TALLULAH MORGAN, ET AL., Plaintiffs, v. CIVIL ACTION NO. 72-911-WAG ROBERT GITTENS1 , ET AL., Defendants. GARRITY, D.J. MEMORANDUM OF DECISION AS TO ATTORNEYS' FEES January 31, 1996 As noted in the Final Judgment and the Final Judgment as Amended, 2 the Court has under advisement plaintiffs' In keeping with practice, the named defendant is the Chairman of the Boston School Committee. Pursuant to Fed. R. Civ. P. 25(d) (1), defendant Gittens is substituted as the named defendant; and Mayor Thomas M. Menino and other successor municipal officers are automatically substituted as parties defendant. 2 Between May 1990 and July 1994, judgment was amended thrice by this Court, on September 19, 1990, June 21, 1991, and July 30, 1993, and once on February 21, 1991 by the Court of 1 I applications for awards of attorneys fees and expenses pursuant to 42 u.s.c.  1988. In November 1988 Attorneys Atkins and Pressman were awarded compensation for services and expenses through December 14, 1988 and October 5, 1988 respectively, Atkins by court order and Pressman by agreement with defendant. Since then plaintiffs have filed a series of applications, initially in December 1989, followed by several supplements3 covering services and expenses of Atkins and services of Pressman through the summer of 1993. They have not sought compensation for time spent thereafter on miscellaneous matters and preparing further memoranda. 4 Defendant City of Boston has responded to each of plaintiffs' applications, contesting their right to any awards at all and raising several particular objections. The Court heard oral argument on April 18, 1990 and has received voluminous supporting materials, including comprehensive, detailed and contemporaneous records of time spent and expenditures incurred; affidavits of the applicants stating their general qualifications and describing particular services in the instant case; affidavits of members of the bar of this court attesting to the reasonableness of the hourly rates Appeals. Precise dates are omitted partly because unnecessary since they appear on related exhibits and because there are small differences in the filing dates and periods covered by plaintiffs' separate applications and supplements for services. Plaintiffs' last memorandum was filed on June 1, 1995 to which defendants replied on June 16, 1995. 2 charged; reports in legal publications as to fees customarily charged in 1989 by lawyers in law firms in Boston and elsewhere; and transcripts of prior proceedings in this case. 5 In ruling upon the pending applications, the Court has analyzed a small mountain of filings which might in other contexts be overkill but not here because the events to which the services of counsel relate are long past and had to be reconstructed. OVERVIEW OF APPLICATIONS Thomas I. Atkins, Esquire, is in private practice specializing in civil rights litigation, particularly school desegregation cases, with offices in Brooklyn, New York. Due to his scholarship and long specialized experience, Mr. Atkins is in a class by himself representing plaintiffs in this type of litigation. Before moving to the national scene, he was active in Boston civic affairs since his days at Harvard Law School. For example, he was elected as a city councillor for two terms, and learned of the City's racial tensions first hand. Robert Pressman, Esquire, has comparable credentials, outlined in his affidavit filed with plaintiffs' application dated January 24, 1990. Following five years with the Civil Rights Division of the Department of Justice, he came in 1970 to the Center for Law and Education in Cambridge, a national support center for the entire legal services program on education issues. Mr. Pressman has tried school desegregation cases in a dozen 5 Especially relevant is the Court's appraisal at a November 15, 1988 hearing of Attorney Atkins' extraordinary qualifications as counsel for plaintiff class. 3 federal district courts, argued appeals in several federal circuits and been a principal contributor for two years to the Education Law Bulletin. Of all the attorneys who have filed appearances for various parties to these proceedings, who probably number in the thirties, he is the only one who was with the case since its inception, attending more hearings and submitting more briefs than any other lawyer. Being an employee of the Center, the Court's award to plaintiffs for his services will go to the Law and Education Center, Inc. Total compensation sought by plaintiffs for Atkins' services is $129,123 plus reimbursement of expenses amounting to $3,162.69, and for Pressman $109,311 for services with no claim for expenses. The application for Atkins is predicated on an hourly rate of $300, and for Pressman a rate of $200. Both applications are approximately $18,000 greater than those submitted on August 27, 1993 for such services and expenses. At that time, as shown in the following tables of applications filed on the dates and covering the time periods specified, hourly rates charged by Atkins increased from $240 in 1988 to $300 in 1991; and by Pressman from $140 in 1988 to $200 in 1991. 6 Plaintiffs are now seeking awards for the first three years, 6 A third set of periodic applications was received from plaintiff intervenors El Comite de Padres Pro Defensa de la Educacion Bilinque, capably represented in these proceedings for two decades by Attorney Caroline B. Playter of Boston. Ms. Playter's hourly charges increased from $125 to $140 in 1990, and her reapplication filed in 1995 was based upon a current hourly rate of $175. As occurred with all previous applications by El Comite de Padres, its final one was settled. 4 - 1988-91, at rates which their attorneys began charging in 1991. ATKINS' P~RIOOIC APP~ICATIOII~ P~RIOO C~R~Q HClJRS ~ !.ill Qill TOTALS SUBMITTED 12/15/88-12/16/89 239 240/hr 57,360.00 2,134.41 59,494.41 1/24/90 1/3/90-4/30/90 4.5 265/hr 12,852.50 192.70 13,045.20 4/30/90 5/1/90-5/18/90 23.25 265/hr 6, 161.25 n.a. 6,161.25 5/18/90 5/19/90-5/21/90 2l .OO 265/hr 5,565.00 308.70 5,873.70 6/6/90 5/30/90-4/2/91 17.75 265/hr 4,703.75 n.a. 2,928.75 4/8/91 9/26/90-12/4/90 7.50 265/hr l,987.50 n.a. l,987.50 4/8/91 4/15/91-8/24/93 73.41 300/hr 22,023.00 526.88 22,549.88 8/24/93 TOTALS: 430.41 110,653.00 3,162.69 113,815.69 PRESSMAN'S PERIOOIC APPLICATIONS AFFIDAVIT DATE OATES OF \\IORK HClJRS RATE TOTAL 12/29/89 l0/6/88-12/29/88 12.40 $140 S 1,736.00 4/9/90 1/13/89-12/28/89 211.TT $160 $33,883.20 5/18/90 1/2/90-5/18/90 114.23 S160\" $18,276.80 4/3/91 7/3/90-4/1/91 83.15 $160 $13,304.00 10/28/93 4/11/91-6/28/93 50% of hours 62.50 $180 S11,250.00 SOX of hours 62.50 $200 $12,500.00 TOTAL HClJRS: 546.55 AMOJNT: $90,950.00 Fees claimed in these periodic filings totalled $201,603; fees now sought total $238,434, an increase of $36,831. Expenses of $3,162.69, 1 all incurred by Atkins, remain the same. Without waiving explicitly a general objection to the Court's continuing jurisdiction to award fees under 1988, defendants have modified their position regarding reasonable hourly rates for services of plaintiffs' attorneys. In two oppositions filed in April, 1990, they first contended that Defendants' initial objection to this item was waived at page 10 of their memorandum filed December 13, 1993-. 5 maximum hourly rates for Atkins' services should be $140 and $90 for Pressman. The second opposition increased these figures to $200 and $140 respectively; but argued that roughly two-thirds of the applicants' services should be classified as \"non-core\" and compensated at the lower hourly rates of $160 and $100 respectively. A later defendants' memorandum in opposition filed in December 1993, applicable to services after April 11, 1991, agrees to increased hourly rates of $300 and $190 for core work8 but suggests $190 and $120 for non-core, respectively. Total fees proposed by defendants in their December 13, 1993 memorandum in opposition, without waiving substantive objections, are $56,674.15 for Atkins and $50,372.20 for Pressman, a total of $107,046.35. Costs of $3,162.69 incurred by Atkins have not been reduced by defendants in relation to fee reductions. Historical Background Consideration of the merits of plaintiffs' pending applications requires an understanding of the relevant history of these proceedings. It is recounted in detail in Morgan v. Nucci, 620 F. Supp. 214, 217-218 (D. Mass. 1985), and Morgan v. Nucci, 831 F.2d 313, 315-17 (1st Cir. 1987), and shows how the Court's remedial orders were lifted incrementally, a procedure later endorsed in Freeman v. Pitts, 503 U.S. 467, 489 (1992). The case was closed, except for the pending applications, in similar 8 These were merely token concessions, however, since they pertained to only 4.5 hours of 96 hours claimed by Atkins during a period of more than two years; and to only 24 hours of the 115 hours claimed by Pressman during the same period. 6 incremental fashion by so-called Final Orders dated September 3, 1985 (attached as Appendix A), Final Judgment dated May 31, 1990, Amended Final Judgments dated September 19, 1990 and June 21, 1991 and Final Judgment as Amended dated July 19, 1994. An important closing order, vacating the Court's injunctive orders which had governed the student assignment process, was also issued by the Court of Appeals on September 28, 1987. See 831 F.2d at 326. Thereupon, the Defendant Mayor hired two consultants, Michael Alves and Charles Willie9 , to develop a new student assignment plan. After several months of consultations and hearings, the consultants in December 1988 proposed a plan to the Boston School Committee (\"BSC\") which approved its general framework on December 28, 1988. Following a public hearing on February 14, 1989, the Committee, on February 27, 1989, voted to adopt the plan subject to further modification arising out of the 90-day process ordered in paragraph 8 of the Court's 1985 final orders. The State Board convened eleven negotiating sessions, in which plaintiffs' counsel participated fully, which proposed numerous changes which were eventually adopted in April 1989 by the School Committee. Called the Controlled Choice Plan (\"CCP\"), it was scheduled for implementation at entry elementary grades in September 1989 (Phase I) and systernwide in September 1990 (Phase 9 Both were closely associated with the Court's plan, Alves as Project Director for Boston Desegregation Assistance at the State Board, and Willie as one of the four Masters who designed the plan adopted by the Court in 1975. 7 II); meanwhile the Court plan would continue in effect. Dissatisfied with some aspects of the CCP, and seeking more time for further study and amendments, plaintiffs moved for an injunction against its implementation on the ground that it would tend to resegregate the schools. After hearings on May 26, 30 and 31, 1989, the Court denied plaintiffs' motion, and Phase I of the CCP went into effect in September. In December the Committee again directed its general counsel \"to initiate the 90- day process required for modification of orders in Morgan vs. O'Reilly so that the second phase of the new student Assignment' Plan adopted herewith may be implemented\"; and again plaintiffs' counsel participated actively. Roughly 55% of counsels' services covered by the pending applications (532 hours out of a total of 977) pertains either directly or indirectly to the CCP. Another segment of plaintiffs' applications to which defendants are objecting on legal grounds is hours spent counteracting the efforts of the Boston Teachers Union (\"BTU\") to eliminate and then overturn on appeal paragraph (3) of the Final Judgment dated May 31, 1990, entitled \"Faculty and Staffing.\" The legal point now alleged by the defendants is that time spent defending against an intervenor's claim, which was also resisted by the BSC, is not properly chargeable against the BSC and City defendants. Undisputed Areas Defendants have not questioned several essential 8 components of plaintiffs' overall burden of proving their entitlement to attorneys' fees and expenses during the wind-down phase of these proceedings. The first is plaintiffs' having prevailed in demonstrating pervasive~~ segregation in Boston public schools and obtaining numerous far-ranging remedial orders, nearly all affirmed by the Court of Appeals and left in place by Supreme Court denials of certiorari. Nor have defendants challenged the inter-relationship between the hours for which compensation is now sought and the several claims as to which plaintiffs gained complete success. See Lipsett v. Blanco, 975 F.2d 934, 940-41 (1st Cir. 1992). Also undisputed are the hours that plaintiffs' attorneys claimed that they worked, the adequacy of their descriptions of services performed, and the contemporaneity of their diary entries. Clearly they met the record-keeping requirements ordered in Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st cir. 1984). It is clear too that Atkins and Pressman exercised sound billing judgment. There was virtually10 no duplication of services; e.g., it is apparent from an exhibit filed with plaintiffs' first supplemental application that, of the 33 meetings and four days of hearings attended by plaintiffs' counsel pertaining to the Controlled Choice Plan, plaintiffs' attorneys attended together only two of them. It is also 10 Agreement on this point is qualified by defendants' contention, addressed post, that charges by Pressman for conferring with Atkins should be disallowed because they are \"duplicative legal services.\" 9 apparent that work on behalf of plaintiffs' interests was divided so as to avoid duplication. All hours claimed were worked by Atkins and Pressman personally; none was referred to paralegals or associate counsel, any of whom would have required timeconsuming orientation and introduction to the complex, even arcane, issues with which plaintiffs' attorneys had become intimately familiar. Since his office was out of state, Atkins did not charge for time spent traveling to and from Boston. In sum, plaintiffs have made a strong prima facie showing of entitlement to the award of fees and expenses sought in the pending applications. It behooves them to show further that the hours claimed were reasonably spent and that their claimed hourly rates of compensation are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983}; Blum v. Stenson, 465 U.S. 886, 895 (1984). These essential elements of plaintiffs' applications are disputed by defenda' nts on grounds which we now address. DEFENDANTS' OBJECTIONS As heretofore noted, most of counsels' services for which plaintiffs now seek compensation related to the Controlled Choice Plan. Of such CCP services, three-fourths comprised their participation in 90-day sessions concerning Phases I and II or in 90-day subcommittee work, and the balance pertained to plaintiffs' unsuccessful attempt, by motion for a preliminary injunction denied May 31, 1989, to delay implementation of the CCP until 1990. Defendants central objection to an award for 10 such services rests on the above-mentioned 1987 Court of Appeals decision vacating the Court's orders pertaining to student assignments; and our award of fees for such services reflects our understanding of the relationship of the appellate court's order to provisions of the 1985 Final Orders not appealed from. In the defendants' view, after September 25, 1987, \"plaintiffs no longer had either the status of 'prevailing' parties on the issue of student assignments or the authority to monitor or review the school defendants' actions in developing and implementing the new plan.\" On the contrary, we find that the Court of Appeals ruling did not nullify any rights of the plaintiff class or deprive it of the victory it had achieved in the area of student assignments. Rather it reaffirmed plaintiffs' entitlement to the non-discriminatory treatment that they had received under the Court plan. It was aimed not at the plaintiffs, but at the lower court, which should no longer \"continue to involve itself\" in student assignments. The appellate decision did not affect paragraphs of the Final Orders on the unified facilities plan, parent councils, and faculty and staff. Nor did it disturb provisions of the Final Orders not appealed from, including the permanent injunction in Paragraph (2) and the detailed consent mechanism contained in paragraph (8) for the gradual transfer to the defendants of general responsibility for managing its schools, a transition begun with disengagement orders in 1982 and advanced by orders in 1984 and 1985 terminating the Court's 11 jurisdiction in several areas of school administration. At every turn, starting with negotiations initiated by the State Board in June 1981 aimed at fashioning a comprehensive consent decree, 11 never achieved, the Court relied upon the cooperation and, where obtainable, the collaboration of the defendants. Thus it came as no surprise that the school defendants, after September 25, 1987, resorted to the paragraph (8) procedures of the Final Orders to facilitate their development and implementation of the CCP, sometimes called the Alves-Willie Plan, aptly described by them as representing \"an evolution, not a counterrevolution.\" Until the opening of the 1989-90 school year, the defendants continued to comply with the Court plan and, except for entry elementary grades, did so until September 1990, three years after the Court of Appeals mandate. Plaintiffs' counsel participated fully and constructively in the development of the CCP, not as strangers or volunteers, as defense counsel has suggested in opposing an award of fees, but at the repeated request of the defendants. The details of their services in this regard are set forth in affidavits appended to plaintiffs' applications. Generally speaking, as soon as an executive summary of the proposed new Plan was available on February 9, 1989, BSC's general counsel mailed copies to parties to the paragraph (8) 90- 11 The Court's memorandum dated August 2, 1983 acknowledged the first State Board monitoring report as \"a long step toward a common ground from which the parties can discuss and confront issues of compliance and non-compliance in an intelligent and informed fashion.\" (emphasis added) 12 day process, including plaintiffs, with an assurance that they would receive complete copies when available. Promptly, on February 13, Atkins and Pressman replied with a five-page letter, copied to counsel for other 90-day process parties, raising various issues for discussion, including facilities and programs, seat allocations, transfers of students on the waiting list and opportunities for black pupiis to attend school in East Boston. All these and other issues raised in plaintiffs' letter were agenda items at several meetings moderated by the State Board. 12 Three series of 90-day process meetings were convened, all at the request of the school defendants, as follows: on February 27, 1989, the Boston School Committee approved the following order: ORDERED, That the School Committee approve the Controlled Choice Student Assignment Plan submitted on December 28, 1988 and amended by the School Committee on February 7, 1989 and February 27, 1989, and authorize the School Department to undertake the necessary preparations for implementation of the plan, subject to further modification pursuant to the procedures set forth in paragraph 8 of the Final Orders in Morgan v. O'Reilly. (emphasis added) On July 26, 1989, BSC General Counsel asked state Board counsel to convene a 90-day process to consider a package of school closings and consolidations, stating in part: 12 Former Superintendent Wilson's affidavit dated May 25, 1989 stated, at paragraph 15: \"During February and March and April, my staff brought to my attention numerous additional concerns and recommendations for changes in the Plan raised during the course of the paragraph 8 proceedings. I considered them carefully and recommended to the Committee that it approve a number of amendments to the Plan based on those recommendations.\" 13 If you believe that these closings and consolidations conflict with any operative Court orders, the school defendants ask you to determine, pursuant to paragraph 8, that these closings and consolidations are emergency matters, due to the budget crisis, which the School Committee may adopt without negotiation or that these closings and consolidations effect insubstantial modifications of court orders and therefore need not be negotiated. If you determine that negotiations are required, we would appreciate your convening the parties immediately and attempting to expedite negotiations so that these closings and consolidations may be implemented in September 1989. (emphasis added) On December 12, 1989, the BSC adopted the following motion (12 affirmative, 1 absent): Resolved that the School Committee direct their Office of General Counsel to initiate the 90-day process required for modification of orders in Morgan vs. O'Reilly, so that the second phase of the new Student Assignment Plan adopted herewith may be implemented. (emphasis added) Continuing reliance by the BSC on the assistance of plaintiffs' attorneys regarding student assignments was demonstrated repeatedly during the development of the CCP. For example, in April 1989, the BSC established a three-member independent commission to review the pattern of actual assignments made for the 1989-90 school year, to be composed of one member appointed jointly by the City and the School Department, one member appointed by the plaintiffs, and one member appointed by the State Board of Education. By letter dated August 28, 1989, plaintiffs indicated that Pressman would 14 be their representative. For another, early in 1989 the BSC appointed a High School Student Assignment Subcommittee chaired by member Rosina T. (\"Kitty\") Bowman, to recommend development of a viable assignment plan for high school students. Plaintiffs designated Pressman to be their representative on the \"Bowman Subcommittee\" and, on this assignment, he spent 17.5 hours attending eight subcommittee meetings from October 30, 1989 through February 5, 1990. The collaborative relationship between plaintiffs' counsel and the BSC extended to implementation of the CCP and carried forward until the end of 1992. For example, on March 11, 1992, school committee counsel wrote to plaintiffs, in pertinent part as follows: Enclosed are several documents related to the proposed modifications to the Student Assignment Plan. The School Committee adopted the proposal (Attachment 1) conditioned upon satisfactory discussions among the parties. For another, on November 23, 1992, Pressman made a presentation to a BSC subcommittee at English High School with respect to proposed policy changes in the student assignment plan. We find that all the hours spent by Atkins and Pressman preparing and presenting proposals to other participants in the 90-day process negotiations and attending all 90-day process meetings and in related studies, consultations and presentations are compensable under 1988. Several legal theories support this award. One is quantum merrit: the defendants invited counsel's participation and benefitted substantially from it in a 15 context where it knew that plaintiffs' had received from defendants prior awards of attorneys' fees in the same litigation, that they had applied for and expected to receive further awards and that plaintiffs' counsel rendered their services in good faith. See Newfield House, Inc. v. Massachusetts Dept. of Public Welfare, 651 F.2d 32, 38 (1st Cir.), cert. denied, 454 U.S. 1114 (1981); see also Transnational Corp. v. Rodie \u0026 Ursillo, Ltd., 920 F.2d 1066, 1070-71 (1st Cir. 1990). Another is that the 90-day process was, from plaintiffs' standpoint and interests, the equivalent of the further hearing authorized by the Court of Appeals in its September 25, 1987 decision, see, 831 F.2d at 326, except that plaintiffs' submissions were addressed to the school defendants rather than to the District Court, and except further that plaintiffs' submissions were not limited to student assignments but pertained also to other matters such as the condition and consolidation of schools, availability of textbooks, proposals of parent groups, etc. It was also in the nature of reasonable post-judgment monitoring, see Brewster v. Dukakis, 786 F.2d 16, 19 (1st Cir. 1986); Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984), whereby plaintiffs sought and obtained assurance that the desegregation already achieved did not unravel to their disadvantage. Failure to Enjoin CCP Plaintiffs' application regarding services in connection with their unsuccessful attempt by motion filed May 16 15, 1989 to enjoin establishment of the CCP rests also on an additional basis: defendants obligation under paragraph (2) of the Final Orders and 42 u.s.c.  1983 generally to avoid resegregation of Boston's public schools. Plaintiffs contend that some of the CCP's provisions were objectionable on those grounds and that their efforts to change or eliminate objectionable provisions met with substantial if partial success. Plaintiffs point to various revisions in the new Plan made by defendants which had the effect of blunting plaintiffs' objections prior to the Court hearings on their motion. For example, the BSC modified a formula objectionable to plaintiffs for calculating relevant zone racial-ethnic percentages so as to exclude from the calculation students unavailable for assignment to zone schools. For another, the CCP as drafted would have reduced desegregation in East Boston, until the BSC approved a proposal by plaintiffs to permit black students from outside the North Zone to attend schools in East Boston on a space-available basis. On the other hand, plaintiffs' proof of likely resegregation fell short of demonstrating irreparable harm to the plaintiff class or an intent by defendants to turn back the clock to the era of de jure segregation. Quite the opposite: defendants' acceptance of changes sought by plaintiffs, together with other evidence, satisfied the Court that defendants' good faith in promoting desegregation remained strong. Hence plaintiffs' motion for an injunction was denied. Should plaintiffs nevertheless recover fees for time 17 spent by their attorneys (totalling 114.83 hours) preparing and arguing their motion for an injunction? Yes, in our opinion, principally because the claims presented in plaintiffs' motion were essentially an extension of claims they had been advocating throughout the previous decade and were interconnected with claims as to which plaintiffs prevailed. The law in this area has been well settled since first explicated in Hensley, 461 U.S. 424. It has been construed repeatedly in cases in this circuit. See,~, Lipsett, 975 F.2d at 940-41; Exeter-West Greenwich Regional School Dist. v. Pontarelli, 788 F.2d 47 (1st Cir. 1986f; Aubin v. Fudala, 782 F.2d 287 (1st Cir. 1986). Where claims presented by plaintiffs in a civil rights suit are related and plaintiffs have won substantial relief, attorneys fees under 1988 should not be reduced because of a discrete unsuccessful claim by plaintiffs. In the instant case, plaintiff "},{"id":"noa_sohpcr_j-0075","title":"Oral history interview with Harvey E. Beech, September 25, 1996","collection_id":"noa_sohpcr","collection_title":"Oral Histories of the American South: The Civil Rights Movement","dcterms_contributor":["Foye, Anita","Southern Oral History Program"],"dcterms_spatial":["United States, North Carolina, Orange County, 36.0613, -79.1206","United States, North Carolina, Orange County, Chapel Hill, 35.9132, -79.05584"],"dcterms_creator":["Beech, Harvey E., 1923-"],"dc_date":["1996-09-25"],"dcterms_description":["Harvey E. Beech was born in Kinston, North Carolina, in 1923, the youngest of five children. Although Beech's father could not read or write, he saved his money and opened barbershops throughout the Kinston community. His business acumen afforded most of his children the opportunity to attend college. His youngest son, Harvey, however, was sent to Harris Barber College in Raleigh, North Carolina, since his older siblings' education had taken its toll on their father's bank account. Harvey's academic drive and passion for education led him to pursue a college degree. He earned enough money to attend Morehouse College, and his self-reliance, independence, and passion for changing social injustices propelled his interest in a legal career. To earn money for law school, he promoted black entertainers and opened a general store. In the early 1950s, Thurgood Marshall asked Beech to join a pending case against the University of North Carolina School of Law. Beech joined the case, along with J. Kenneth Lee. In 1951, Beech and Lee, along with James Lassiter, Floyd McKissick, and James Walker, became the first African American students to enroll at the UNC law school. Beech candidly discusses the psychological impact of desegregating an all-white institution, including his anger at having to give up his swimming pool privileges because of his race. 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APPELLEE Ilic APPELLEE~ _ .. APPELLANT Appeal from the United States District Court For the Eastern District of Arkansas Western Division Honorable Susan Webber Wright, District Judge BRIEF OF APPELLEE\\APPELLANT MRS. LORENE JOSHUA, ET AL. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 Bob Pressman 22 Locust Avenue Lexington, MA 02173 617-862-1955 I I I I I I I I I I I I I I I I I I 1, Summary and Reguest for Oral Argument Long after this court in 1990 directed the entry of a fresh order providing for the dismissal of the State (but not the local systems) from this litigation, the LRSD's appeal calls for this court to consider the meaning\\implications of the robust version of continuing jurisdiction provided for by this court in 1990. This court must also consider, with regard to the LRSD motion denied below, the implications of the district court's finding of poor implementation by LRSD, a finding amply supported by the record. The contract issues presented by LRSD involve the application of basic principles of contract interpretation. Such principles call for a different result than the one reached below. Oral argument is warranted, given LRSD's request for a directive that the litigation be dismissed with prejudice. I I I I I I I I I I I I I I I I I I I TABLE OF AUTHORITIES Cases Appeal of Little Rock Sch. District, 949 F.2d 253 (8th Cir. 1991) 6, 15-16 Brown v. Board of Education, 349 U.S. 294 (1955) 1, 13, 15 Continental Bank and Trust Co. v. American Bonding Co., 630 F.2d 606 (8th Cir. 1980) 17 Klein v. Arkoma Production Co., 73 F.3d 779 (8th Cir. 1996) 17 Little Rock Sch. Dist. v. Pulaski County Special School District, 921 F.2d 1371 (8th Cir. 1990) passim Little Rock Sch. Dist. v. Pulaski County Special School Dist., 971 F.2d 160 (8th Cir. 1992) 14, 15-16 Press Machinery Corp. v. Smith R.P.M. Corp., 727 F.2d 781 (8th Cir. 1984) 18 Raney v. Board of Education, 391 U.S. 443 (1968) 13 st. Mary's Honor Center v. Hicks, 113 s.ct. 2742 (1993) 14 Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1 (1971) 15 Tasby v. Estes, 643 F.2d 1103 (5th Cir. 1981) 12 Union National Bank v. Federal Nat. Mort. Assoc., 860 F.2d 847 (8th Cir. 1988) 19 United States v. Montgomery County Board of Education, 395 U.S. 225 (1969) 15 Wright v. City Council of Emporia, 407 U.S. 451 (1972) Other Authorities Restatement of Contracts, Second, Sections 202(1), 203(a) 15 1, 18-19 I I I I I I I I I I I I I I I I I I I TABLE OF CONTENTS summary and Request for Oral Argment Table of Contents Table of Authorities Issues Presented on Appeal Statement of the Case A. LRSD's Motion for Dismissal B. The Servicemaster Contract Argument A. The District Court's Denial of LRSD's Motion Dismissal with Prejudice Should be Affirmed for 1. It is Plausible to Construe This Court's 1990 Decision as Not Applying the Provision for Dismissal of the Case as to the Local Districts i ii iii 1 1 1 11 12 12 12 2. If the District Court, in Substance, Rejected a Belated Effort to Implement a Portion of the Settlement Agreement, That Action Was Not an Abuse of Discretion in View of the Evolution of the Case Since 1990 15 B. The Court Erred in Applying Principles of Contract Conclusion Addendum Release as to State Order of Dismissal, Dec. 15, 1989 Order, Jan. 18, 1991 Statement of Judge Wright to LRSD Counsel and Board, March l9, 1993 Transcript Excerpts, March 29, 1993 Transcript Excerpts, June 7, 1994 Transcript Excerpts, June 29, 1994 Excerpts from ODM report, May 17, 1995 Law 17 19 1 5 6 8 16 22 30 40 I I I I I I I I I I I I I I I I I I I Issues Presented on Appeal (1.) Whether, in 1990, this court in fact approved, as to LRSD, a provision for dismissal with prejudice of this civil action and cases consolidated therein and their predecessors. * Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371 (8th Cir. 1990) (2.) Whether, alternatively, the district court's denial in 1996 of the motion for dismissal with prejudice was, in view of the evolution of the case since 1990, an appropriate exercise of the court's broad discretion. * Little Rock School District v. Pulaski County Special School District, supra, 921 F.2d at 1386, 1394 * Brown v. Board of Education, 349 U.S. 294, 299-301 (1955) (3.) Whether the district court erred in interpreting the contract between the LRSD and Servicemaster Management Services and in declaring the interpretation urged by the LRSD and the Joshua Intervenors to be inconsistent with public policy. * Restatement of Contracts, Second, Sections 202(1), 203(a) Statement of the Case A. LRSD's Motion for Dismissal In 1988 and 1989 the parties agreed to settle this desegregation case concerning three school districts in Pulaski County, Arkansas. They presented to the district court separate, detailed, desegregation plans for the three systems, a lengthy interdistrict plan, and a 36-page \"settlement agreement\" 1 I I I I I I I I I I I I I I I I I I I resolving the financial liability of the State of Arkansas. 1 Four releases were attached to the settlement agreement, one pertaining to each of the three local school systems and one regarding the State and its agents. A difference in the text of the two categories of releases is noteworthy. The releases pertaining to the LRSD, the NLRSD, and the PCSSD contained the following identical provision (emphasis by use of capitalization and parenthetical explanations added). 2 It is further understood and agreed that the litigation now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1 et al., No. LR-C-82-866 and cases consolidated therein and their predecessors (including but not limited to, [identification of other cases applicable to the system] (the 'Litigation') is to be dismissed with prejudice as to the [name of local system] 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. The release regarding the State and its agents did not include the language regarding the retention of jurisdiction. It read as follows: It is further understood and agreed thast the litigation now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1. et al., No. LR-C-82-866 and cases consolidated therein and their predecessors (the 'Litigation') is to be dismissed with prejudice as to the Arkansas State Board of Education and the former and current 1 See Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371, 1376 (8th Cir. 1990). 2 See LRSD Addendum, at 13, 17, 21. 2 I I I I I I I I I I I I I I I I I I I members of that Board named in the Litigation. 3 Thereafter, the parties appealed to this court the district court's rejection of the five agreements. At the outset of its opinion, this court characterized its resolution of the parties' challenge to the district court's action, as follows. We now reverse the judgment of the District Court. In general, we direct that Court, on remand, to approve the settlement plans and settlement agreement as submitted by the parties. We also make certain other directions for the future of the case. This court discussed the standards governing its review of the parties' settlement. See 921 F.2d at 1383-85, 1388-89. On the one hand, the court emphasized the importance of the parties' agreement and the public policy in favor of settlements. Id., at 1383, 1388. The court also recognized, however, its responsibility to insure that the agreements were not \"unfair to class members ... ,\" or ones inconsistent with the \"[court's] strong interest in not involving itself, along with the prestige of the law, in an ongoing equitable decree which is either manifestly unworkable or plainly unconstitutional on its face.\" Id., at 1383. This court's 1990 opinion emphasized the district court's important responsibilities and its considerable authority and discretion. This language, quoted below, casts doubt on whether this court in fact approved the \"dismiss[al] with prejudice\" of 3 See Joshua Add., at 2.  See Little Rock School District, supra, 921 F.2d at 1376. 3 I I I I I I I I I I I I I I I I I I I this and the related civil actions as to the LRSD (and NLRSD and PCSSD). This text is as follows: 921 F.2d at 1383 This does not mean that a court must automatically approve anything the parties set before it. In the present case, for example, any remedy will necessarily require some judicial supervision -- monitoring, at least -- for a long time. A court has a strong interest in not involving itself, along with the prestige of the law, in an ongoing equitable decree which is either manifestly unworkable or plainly unconstitutional on its face. In addition, this is a class action, and courts are not obliged (indeed they are not permitted) to approve settlements that are unfair to class members, or negotiated by inadequate class representatives. 921 F.2d at 1386 The district court was concerned about the lack of sufficient detail in the plans to guarantee successful implementation. The answer to this concern lies, we think, in the fact, upon which we place a great deal of weight, that the parties have all agreed to continued monitoring. Indeed, such monitoring by the District Court and its agents is essential. It is important for the settlement plans to be scrupulously adhered to -- and here we have in mind especially the kind of programs that the plan contemplates for the incentive schools -- and it will be the job of the District Court to see that this monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments. 921 F.2d at 1388 As indicated above, this does not mean that the parties will be free of supervision or monitoring. Quite the contrary: a necessary condition of our holding that the plans are not facially unconstitutional is that the parties' compliance with them will be carefully monitored. As we shall make clear at the conclusion of the opinion, when we set out the directions to be followed by the District Court on remand, the office previously known as the Office of the Metropolitan Supervisor will be reconstituted as the Office of Desegregation Monitoring, to be headed by a Monitor appointed by the District Court, with such additional personnel as the District Court shall deem appropriate. 921 F.2d at 1390 .. We accept these undertakings [of the districts], 4 I I I I I I I I I I I I I I I I I I I again with the reminder that compliance with them will be closely monitored. If the District Court becomes convinced in the future that money is being wasted, and that desegregation obligations contained in the settlement plans are being flouted, it will be fully authorized to take appropriate remedial action. As the parties agree, the settlement agreement implicitly authorizes the District Court to retain jurisdiction to oversee its implementation. See 14 App. 3466. 921 F.2d at 1394. para. (8.) The District Court is instructed to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require. 921 F.2d at 1394. para. (9.) .. The parties should be able to agree as to whether any such adjustments [for purposes of transition to the new plans] are necessary, and, if so, what they should be. Absent such agreement, the District Court is authorized to take such action as may be just. [explanation added] This court's \"actions\" (921 F.2d at 1394) also addressed explicitly the \"settlement plans,\" the \"settlement agreement,\" and the provision, set forth without qualification, for dismissal of the State and its agents from the litigation. The court directed the district court, on remand, \"to approve\" \"the settlement plans submitted by the parties\" and \"the parties' settlement agreement as written by them.\" See 921 F.2d at 1394. This court also specified [921 F.2d at 1394, para. (5.), emphasis added] that [i]n Nos. 90-1165, 90-1166, and 90-1167, the District Court's order of December 11, 1989, is reversed, and the order of December 15, 1989, is vacated, with instructions to enter a fresh order dismissing the State as a party pursuant 5 I I I I I I I I I I I I I I I I I I I to the terms of the parties' settlement agreement. 5 There was no comparable provision regarding LRSD, NLRSD, or PCSSD. In an order of January 18, 1991, the district court (the Honorable Susan Webber Wright) addressed certain of this court's directives. Judge Wright, inter alia, ordered that \"[t]he state of Arkansas is dismissed as a party to this action pursuant to the terms of the parties' settlement agreement.\" Joshua Add., at 7. She added that \"[t]he parties' settlement agreement is hereby approved as written by them\" (id.) and paraphrased this court's description of her responsibilities and authority as the case unfolded on remand. Id. In Appeal of Little Rock School District, 949 F.2d 253 (8th Cir. 1991), this court addressed the contention that the district court had employed erroneous legal standards in considering the parties' agreed upon modifications of the settlement. This court concluded that the district court had erred, articulated standards to be used in considering the requested modifications, and remanded for proceedings consistent with the decision. This court added: \"We ask the District Court, to the extent practicable, to give this matter priority on its docket\" (949 F.2d at 258) phraseology seemingly inconsistent with the notion that this case had been or should have dismissed as to the 5 This court referred to the entry of \"a fresh order\" because on December 15, 1989, Judge Henry Woods had, by order, \"dismissed [the State defendants] with prejudice from this case, the cases consolidated herein and their predecessors .... 11 Joshua Addendum, at 5. 6 I I I I I I I I I I I I I I I I I I I local defendants and the Joshua Intervenors. On November 30, 1995 -- 4 years and 10 months after Judge Wright had provided for the dismissal of the State defendants, the LRSD, alone, filed a \"Motion for Order of Dismissal\" seeking an order dismissing this case with prejudice with respect to LRSD, PCSSD and NLRSD as of January 18, 1991, except to the extent the court retains jurisdiction to address issues regarding implementation of the plans and to conduct proceedings to enforce the terms of the settlement agreement or the desegregation plans. [LRSD App., at 35-36) LRSD did not in its motion or supporting memorandum explain to the court and the parties how, if at all, the conduct of the litigation would change if the motion were granted, whether effective January 18. 1991 as requested, or upon the date of the district court's order. See LRSD App., at 34-43. 6 On March 11, 1996, the district court denied LRSD's motion, reasoning as follows (LRSD Add., at 8-9, emphasis added): Let there be no mistake that, with the entry of the settlement agreement, the claims involved in this ongoing litigation were dismissed, at least as a technical matter. The Court finds, however, that no useful purpose would be served by entering an order of disnmissal at this time. The Court of Appeals has instructed this Court 'to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require.' Little Rock School Dist. v. Pulaski County Special School District No. 1, 921 F.2d 1371, 1394 (8th Cir. 1990). The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects of its agreements (although some improvements have been made). Therefore. the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and 6 No such explanation is offered here, despite the fact that the Joshua Intervenors' Opposition to LRSD's motion below noted LRSD's silence about its perceived effects. LRSD App., at 56-57. 7 I I I I I I I I I I I I I I I I I I I the agreement. Even had the LRSD acted in good faith throughout the years. the logistics and complexity of this case are such that this court's monitoring function would be impaired by entering an order of dismissal at this time. The court's earlier statements and reports of the Office of Desegregation Monitoring (ODM), created by order of this court, provide ample support for the court's finding about LRSD'~ poor implementation of the settlement. We next provide examples from the record supportive of the court's finding. Judge Wright directed that LRSD's school board members appear in court on March 19, 1993, at which point she \"read the riot act\" to them, beginning as follows (Joshua Add., at 8): .... The Court does not believe that you understand those orders, or if you do understand them, you do not seek to comply. Hopefully, after this morning, you will have an understanding; but whether you do or do not, you must comply. This court has been too lenient with you. The Court has given you ample leeway and opportunity to move toward a unitary school system. Those days of Court leniency and the assumption by the Court of good faith on your part are over. The court's March 19, 1993 statement, encompassing eight pages (Joshua Add., at 8 - 15), provided considerable evidence of failings in the LRSD. The court, for example, noted that it would \"appoint a budget officer to be paid by the [LRSD], who [would] be a part of the [ODM] and who [would] operate under the direction of Ann Brown [ODM Director].\" lg., at 11. This would be done because \"it became increasingly apparent that the [LRSD] could not or would not develop a budget sufficient to identify 8 I I I I I I I I I I I I I I I I I I I expenditure of desegregation funds.\" Id., at 10. 7 The district court also provided \"a reminder of some of the provisions of the Plan or Court orders that [LRSD had] yet to fulfill,\" citing 21 examples. Id., at 13 - 15. On March 29, 1993, Judge Wright made the following comments to the lawyers for the parties (Joshua Add., at 18, 20-21): And just letting you as the lawyer for the district work this out with Joshua and the ODM will not help me instill in your Board the importance of starting a process whereby they consider the ramifications of their own actions and whereby they focus on the plan. They must be driven by this plan. The plan has to drive their actions and that has not been happening, clearly. * * * I feel that in dealing with the district that the Court has had to to ask the district at every turn where is this, where is that. You promised this under the plan, where is it? And the district kind of says, oh, yeah, we do need to do this, un-huh. But they drag their feet, and they don't have a plan in place to focus and they don't have a process in place to focus on what needs to be done to fulfill their obligations. And I have waited long enough and I'm tired of waiting .. On June 7, 1994, the district judge alluded to the need to depend upon action by many LRSD employees, in the context of again criticizing the quality of the system's implementation efforts (Joshua Add., at 22, 23-24, 27). THE COURT: I want to inject something right now. I hope that you are right, that people are there ready to, as you 7 The court further explained (id., at 13): \"A budget officer to assist the School District is just a 'make work' situation.\" No, it is not; that is patently false. The Court cannot determine how you are spending your money to achieve desegregation. Your administrators do not know. Your lawyers do not know. And you do not know. If the LRSD were a corporation, I would put it in receivership. By the way, do not think that I have not considered that with regard to LRSD.\" 9 I I I I I I I I I I I I I I I I I I I put it, collaborate with the LRSD. I'm willing to assume that that's correct. What I cannot assume is that the LRSD will put in motion the efforts to, in fact, collaborate. The district talks a good game, but a lot of times, doesn't have anyone accountable for putting its promises into action, and we have seen this repeatedly in this case and it's an inherent defect of the Desegregation Plan. The Plan made a lot of promises, but didn't make any one department or person or officer officially accountable, and that's the reason people like you have to be here because nothing was being done. And we are getting things a little more in motion .... * * * THE COURT: Well, that sounds good, but I need to know with some specificity who will do it, when they'll do it, where they'll do it, who the targets are, what the means will be, because so far in this case, it has been difficult to get an organization as big and cumbersome as you school district to coordinate itself to meet these visions you have. I think they're great visions. I mean, no one can say that's a poor idea. I think it's a wonderful idea .... * * * THE COURT: Well, saying that you can do this and saying that that you will do it is not going to be enough in this courtroom any more. You're going to have to say specifically in some detail what you will do, when you'll do it, whom you'll contact and what have you .... 8 This court provided for the creation of the Office of Desegregation Monitoring to gather and report facts, therby facilitating and strengthening the district court's monitoring efforts. LRSD's incentive schools, identified by this court as a pivotal part of the settlement (921 F.2d at 1386 ), have been a focus of ODM's monitoring. In its report of May 17, 1995, concerning the incentive schools, ODM concluded (Joshua Add., at 8 See also Joshua Add., at 30-39 (deficiencies in LRSD's performance described by the court at a hearing on June 29, 1994). 10 I I I I I I I I I I I I I I I I I I I 40-44): This year, we found none of the programs that we monitored being fully implemented at all five schools. Beginning with the first ODM incentive schools report in 1991-92, we have pointed to the glaring inconsistencies among the schools. As the number of incentive schools has dwindled from seven to five, the inconsistencies have grown rather than diminished. With four of the five principals being newly assigned this year, and two of them being brandnew principals, it is no wonder that some programmatic offerings have been slighted as the new principals tried to deal with the challenges posed by incentive schools, while adjusting to new jobs as well. In many areas, we were disheartened to see a retreat from the prior level of program implementation .... [details re particular programs omitted] [At 34) In many ways our fourth annual visit to the incentive schools was the most discouraging review we have conducted. While we saw many positive and commendable aspects, we also saw problems and deficiencies that were entirely avoidable and correctable. The LRSD has had a sufficient amount of time to successfully implement the promised programs. These schools were designed to serve as models of instructional excellence, but that level of quality has not been realized throughout. Instead, too many aspects of these schools serve as an object lesson that promises made, but not kept, are meaningless. Successfully implementing the incentive schools programs is not an impossible task by any means. With solid leadership. competent staff, consistent support, and the will and determination to 'be the best,' all these schools can be the high-guality centers of learning they were pledged to be. [At 36; emphasis added] In summary, as of the time of the LRSD's motion, the district court had an ample basis for concluding that LRSD had not \":scrupulously and diligently carr[ied] out the [relevant portions of] the settlement plans ... \" (921 F.2d at 1394), including the provisions regarding the incentive schools. B. The Servicemaster Contract With the exception of expressing the view that the LRSD and the Joshua Intervenors agreed to a settlement of intervenors' 11 I I I I I I I I I I I I I I I I I I I motion concerning the Servicemaster contract, the intervenors accept LRSD's factual statement regarding this contract. See LRSD Brief, at 4-5. Argument A. The District Court's Denial of LRSD's Motion for Dismissal with Prejudice Should Be Affirmed 1. It Is Plausible to Construe This Court's 1990 Decision as Not Applying the Provision for Dismissal of this Case as to the Local Districts This court is, of course, the best judge of the meaning of its 1990 decision and the specific directives to the district court. 9 It is plausible, we respectfully submit, to construe this court's 1990 decision as not applying the provision for \"dismiss[al] [of this litigation] with prejudice as to the LRSD .\" and its agents. Several factors support this alternative argument. First. This court did not simply state that it approved the settlements. Rather, it cited the responsibility to insure their consistency, facially, with minimum constitutional standards (921 F.2d at 1383) and approved the agrements \"[i)n general\" and subject to \"certain other directions for the future of the case.\" See 921 F.2d at 1376. Second. This court directed the entry of an order dismissing the action agaiamst the State and its agents (921 F.2d at 1394); no similar action was required as to the local systems. 9 See Tasby v. Estes, 643 F.2d 1103, 1106 (5th Cir. 1981) (deference to district court on the standard of compliance established by its own order); Little Rock School District, supra, 921 F.2d at 1391-92 (construing earlier decision in this case). 12 I I I I I I I I I I I I I I I I I I I Third. This court's description (quoted above) of the district court's future role is hardly consistent with a dismissed case. In the light of five, detailed settlement documents, this court obviously foresaw an active role for the district court -- and, indeed, even required the creation of ODM to facilitate that effort. Fourth. This court may have viewed the key paragraph of the releases quoted above as containing contradictory concepts10 and opted for continuing jurisdiction as necessary to meet the minimum constitutionaal standards to which it alluded. 11 Fifth. This court may have construed the key paragraph of the releases - - by use of the words \"may retain jurisdiction ... \" -- to allow the courts to choose the retention of jurisdiction (i.e., a continued open status), if deemed necessary for the court to conclude that the settlement was lawful. See 921 F.2d at 1390.12 Lastly, we reiterate our point about this court's descrip~ion of the status of this case during a later appeal. See supra at 6. To be sure, our suggested approach may involve some tension with the directive that on remand the district court should \"approve the parties' settlement agreement as written by them.\" 10 That is, this case shall be dismissed, this case shall not be dismissed. 11 E.g., Brown v. Board of Education, 349 U.S. 294, 299-301 (1955); Raney v. Board of Education, 391 U.S. 443, 449 (1968). ~ \"As the parties agree, the settlement agreement implicitly authorizes the District Court to retain jurisdiction to oversee its implementation. See 14 App. 3466.\" 13 I I I I I I I I I I I I I I I I I I I 921 F.2d at 1394, para. (6.). 13 It sometimes happens that all of the content of an opinion resolving a complex matter does not fit neatly together. See St. Mary's Honor Center v. Hicks, 113 s.ct. 2742, 2752-53 (1993). If there is tension, or inconsistency, we respectfully suggest that ours is the best reading of the totality of the 1990 opinion. 14 Intervenors' alternative approach does not leave LRSD without the benefit of its bargain. Rather, the case continues to be deemed open, as realistically it is; 15 and LRSD and the other districts are free to argue that any particular matter (or claim) raised by the Joshua Intervenors is ouside the ambit of the ongoing litigation. That is, the case remains open; its nature is somewhat changed.\" 13 There is no such issue, if the agreement \"as written by [the parties]\" is construed by reason of the phrase \"may retain jurisdiction\" to allow the courts to choose a continuing open status rather than dismissal. 14 The decision in Little Rock School District v. Pulaski County Special School District, 971 F.2d 160 (8th Cir. 1992), regarding the provision about millages (see LRSD Brief, at 7-9), is factually distinguishable. That issue did not involve an instance of either differing strands in this court's 1990 opinion approving the settlement, or a provision of the settlement open to multiple interpretations. 15 The docket excerpts included in the LRSD Appendix (at i to xv) include, for example, 155 entries from August 31, 1995 through April 30, 1996. 16 It is unclear to intervenors what the district judge meant by stating that \"the claims involved in this ongoing litigation were dismissed, at least as a technical matter.\" LRSD Add., at 8. The court, there, did not refer to dismissal of the litigation with prejudice. 14 I I I I I I I I I I I I I I I I I I I 2. If the District Court, in Substance, Rejected A Belated Effort to Implement a Portion of the Settlement Agreement, That Action Was Not an Abuse of Discretion in View of the Evolution of the Case Since 1990 It may be, depending upon this court's interpretation of its 1990 ruling, that the district court's denial of the motion is accurately characterized as rejecting a part of the \"settlement agreement\" -- at least temporarily.n If so, that action was not an abuse of discretion given the facts of which the district court was aware when it ruled in 1996, and the non-final nature of its ruling. The Supreme Courts's emphasis on the role of district courts in desegregation cases began with Brown v. Board of Education. supra, 349 U.S. at 299-301. This theme was often repeated thereafter by the high court, which emphasized the need to rely upon the informed discretion of the district courts, the judicial bodies most familiar with the facts of each case.~. United States v. Montgomery County Board of Education, 395 U.S. 225, 227, 235-36 (1969) (noting that on at least one occasion the district court had \"on its own motion, amended his outstanding order ... \"); Swann v. Charlotte-Mecklenburg Board of Educ., 402 u. S. 1, 28 (1971); Wright v. City Council of Emporia, 407 U.S. 451, 470-71 (1972). 18 n The district court wrote that dismissal \"should be deferred\"; the court declined to approve dismissal \"at this time.\" LRSD Add., at 9, 10. 18 In this case, this court has followed the Supreme Court's lead, emphasizing the need for reliance on the district court, as well as that court's discretion. See Little Rock School District. supra, 921 F.2d at 1394, para. (8.); Appeal of Little Rock School 15 I I I I I I I I I I I I I I I I I I I Turning to the action giving rise to this segment of the appeal, the district court faced a motion seeking dismissal of this litigation in 1995 and 1996, at a point when it had been confronted with and commented upon LRSD's inadequate implementation of the settlement, also evidenced by the work of ODM. The situation, then, was different in a very significant sense from 1989-1990 when this court had considered the facial validity of the settlement. See 921 F.2d at 1383-84. The district court's ruling was based upon \"the facts\"; the court took \"appropriate [action] . to ensure compliance with the plans and the agreement .. \"See "},{"id":"gsg_1121-100_0116","title":"Groundbreaking Ceremony at the Civil Rights Museum","collection_id":"gsg_1121-100","collection_title":"W.W. 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Any other use requires permission from the Butler Center."],"dcterms_medium":["judicial records"],"dcterms_extent":["52 pages"],"dlg_subject_personal":null,"dcterms_subject_fast":null,"fulltext":"District Court, brief in support of Pulaski County Special School District's (PCSSD's) response to respondent Arkansas Department of Education's (ADE's) motion to dismiss Pulaski County Special School District's (PCSSD's) ''amendment and supplement'' to its second motion to enforce settlement agreement with the state; District Court, motion for temporary restraining order; District Court, brief in support of motion for temporary restraining order; Court of Appeals, motion to strike certain portions of the Joshua intervenors' appellee/appellant's brief; District Court, Knight, et al., response to Pulaski County Special School District's (PCSSD's) motion seeking equitable relief; District Court, brief in suopport of Knight, et al., response to Pulaski County Special School District's (PCSSD's) motion seeking equitable relief; District Court, Pulaski County Special School District's (PCSSD's) response to motion for temporary restraining order; District Court, brief in opposition to motion for temporary restraining order; District Court, motion for enlargement of time; District Court, motion of the Joshua intervenors to be heard asamicus curiae concerning the Servicemaster contract issue; District Court, motion for hearing; District Court, Pulaski County Special School District's (PCSSD's) reply to Knight, et al., response to Pulaski County Special School District's (PCSSD's) motion seeking equitable relief; District Court, brief in support of Pulaski County Special School District (PCSSD) reply to Knight, et al., response to Pulaski County Special School District's (PCSSD's) motion seeking equitable relief; District Court, order; District Court, Pulaski County Special School District's (PCSSD's) supplemental motion for costs and attorneys' fees as to the state defendants; District Court, brief in further support of Pulaski County Special School District's (PCSSD's) supplemental motion for costs and attorneys' fees as to the state defendants; District Court, memorandum opinion and order; District Court, Joshua intervenors' motion for an award of attorneys' fees; District Court, motion for order; District Court, notice of appeal; District Court, notice of filing, Arkansas Department of Education (ADE) project management tool; District Court, notice of filing, Little Rock School District (LRSD) final program and planning and budgeting tool for 1996-97 and September program and planning and budgeting tool; Chancery Court of Pulaski County, Arkansas, motion to intervene by the North Little Rock School District (NLRSD)  The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors.  IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT v. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. BLYTHEVILLE SCHOOL DISTRICT; BRYANT SCHOOL DISTRICT; FORT SMITH SCHOOL DISTRICT; WEST MEMPHIS SCHOOL DISTRICT; ALTUS-DENNING SCHOOL DISTRICT; ASHDOWN SCHOOL DISTRICT; BARTON-LEXA SCHOOL DISTRICT; BATESVILLE SCHOOL DISTRICT; BIGGERS-REYNO SCHOOL DISTRICT; BLACK ROCK SCHOOL DISTRICT; BRIGHT STAR SCHOOL DISTRICT; BRINKLEY SCHOOL DISTRICT; CENTERPOINT SCHOOL DISTRICT; CLARENDON SCHOOL DISTRICT; COTTON PLANT SCHOOL DISTRICT; CUTTER MORNING STAR SCHOOL DISTRICT; PLAINTIFF DEFENDANTS INT ERVEN ORS INT ERVEN ORS SEP 5 1996 Office of Dss~regation Mcrn1Grn1~ DEWITT SCHOOL DISTRICT; DOLLARWAY SCHOOL DISTRICT;  -------r FOREMAN SCHOOL DISTRICT; FOUNTAIN LAKE SCHOOL DISTRICT; GILLETT SCHOOL DISTRICT; GLEN ROSE SCHOOL DISTRICT; GUY-PERKINS SCHOOL DISTRICT; HOXIE SCHOOL DISTRICT; JONESBORO SCHOOL DISTRICT; KIRBY SCHOOL DISTRICT; LAVACA SCHOOL DISTRICT; LEWISVILLE SCHOOL DISTRICT, MAGAZINE SCHOOL DISTRICT; MALVERN SCHOOL DISTRICT; MAMMOTH SPRING SCHOOL DISTRICT; MANILA SCHOOL DISTRICT; MAYNARD SCHOOL DISTRICT, NORTHEAST ARKANSAS SCHOOL DISTRICT; ODEN SCHOOL DISTRICT; OZ~..RK SCHOO~ DISTRICT; PLAINVIEW-ROVER SCHOOL DISTRICT; POCAHONTAS SCHOOL DISTRICT; PRAIRIE GROVE SCHOOL DISTRICT; SOUTH CONWAY SCHOOL DISTRICT; SPRING HILL SCHOOL DISTRICT; STAMPS SCHOOL DISTRICT; STEPHENS SCHOOL DISTRICT; TURRELL SCHOOL DISTRICT; VAN BUREN SCHOOL DISTRICT; WARREN SCHOOL DISTRICT; WATSON CHAPEL SCHOOL DISTRICT; WEST FORK SCHOOL DISTRICT; WHITE HALL SCHOOL DISTRICT; WINSLOW SCHOOL DISTRICT; WONDERVIEW SCHOOL DISTRICT; and YELLVILLE-SUMMIT SCHOOL DISTRICT BRIEF IN SUPPORT OF PCSSD'S RESPONSE TO RESPONDENT ARKANSAS DEPARTMENT OF EDUCATION'S MOTION TO DISMISS PCSSD'S \"AMENDMENT INT ERVEN ORS AND SUPPLEMENT\" TO ITS SECOND MOTION TO ENFORCE SETTLEMENT AGREEMENT WITH THE STATE PCSSD adopts and incorporates by reference its brief dated August 5, 1996 which was served in support of its response to ADE's motion to dismiss or have this court abstain from considering PCSSD's second motion to enforce settlement agreement with the State. The PCSSD has no sericus quarrel with the State's description of the \"status of Lake View II\" as set forth at page 2 of the State's brief. The State's Exhaustion Argument Simply stated, the new minimum salary law, an unfunded mandate, substantially interferes with the PCSSD's ability to desegregate by requiring, absent a temporary waiver, the shifting of scarce resources away from instructional activities and desegregation related activities into a salary structure1  This law was imposed without regard, apparently, to the publicly known financial circumstances of the PCSSD and without regard to the fact that the PCSSD is one of four school districts in the state which collectively bargains with it~ certified employees. Thus, whatever policy considerations might underpin the passage of the minimum salary law elsewhere in the State, those policy reasons could not apply in the PCSSD where the District and the union have historically agreed (admittedly, often after much rancor) upon a salary schedule for all certified employees. 1The main thrust of the relief sought by the PCSSD on this issue is for the State to provide the funds for compliance with the law. This is not a case about administrative remedies. In any event, any waiver that could be obtained by the PCSSD is limited to two years. The impact of the minimum salary law will be into the next century at a minimum. That the passage of the minimum salary law substantially interferes with the PCSSD's ability to desegregate was amply demonstrated on August 19, 1996 when the teachers in the PCSSD went on strike. Simply put, to the extent that the existence of the minimum salary law was a key component of the dispute which led to the strike, it \"substantially interfered\" with the ability of the PCSSD to desegregate. For a further amplification of this cause and effect scenario, the PCSSD respectfully incorporates by reference the proceedings had in this Court on August 28, 1996, the ruling which issued at the end of those proceedings, and the motion and brief filed by the PCSSD on August 27, 1996. Because the granting of a waiver would only postpone the legal issues and the effects of the minimum salary for a maximum of two years in the context of a case that has been ongoing since 1982, the PCSSD respectfully submits that the minimum salary law issue should be considered in tandem with the other issues raised by the respective PCSSD motions to enforce the settlement agreement. WHEREFORE, the PCSSD prays that the relief sought by State defendants be denied and that under the particular circumstances 3 of this case, that abstention should not lie. Respectfully submitted: WRIGHT, LINDSEY \u0026 JENNINGS 200 West Capitol Ave., Suite 2200 Little Rock, Arkansas 72201-3699 (501) 371-0808 By ; \"11 ' M. SamELlones III (76060) Atta~ eys or Pulas i County Speci' 1 hool District CERTIFICATE OF SERVICE On September 3 , 1996, a copy of the foregoing was served by U.S. mail on the following persons of record:. Mr. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72201 Mr. Christopher Heller Friday, Eldredge \u0026 Clark 2000 First Commercial Building Little Rock, Arkansas 72201 Ms. Ann Brown ODM Heritage West Bldg., Ste. 510 201 East Markham Street Little Rock, Arkansas 72201 William P. Thompson and James M. Llewellyn, Jr. Thompson \u0026 Llewellyn 412 South 18th Street P. o. Box 818 Fort Smith, Arkansas 72902-0818 4 Mr. Richard W. Roachell Roachell and Street First Federal Plaza 410 W. Capitol, Suite 504 Little Rock, Arkansas 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, Arkansas 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, Arkansas 72201 FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS IN THE UNITED STATES DISTRICT COURT SEP O 6 1996 EASTERN DISTRICT OF ARKANSAS WESTERN DMSION JAMES W McCORMACK, CLERK By: --------- DEP. CLERK LITTLE ROCK SCHOOL DISTRICT PLAINTIFF V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KA THERINE KNIGHT, ET AL. REC ,V .. SEP 1996 DEFENDANTS INIERVENORS INIERVENORS Office of Desegregation Monitonn~ BLYTHEVILLE SCHOOL DISTRICT, ET AL. INIERVENORS MOTION FOR TEMPORARY RESTRAINING ORDER Knight, et al. Intervenors, by and through their attorneys, ROACHELL LAW FIRM, for their Motion, state on information and belief: 1. On Thursday, August 29, 1996, the court held a hearing on the Motion of PCS SD for Injunctive Relief with regard to PACT and those of its members who were then engaged in a strike against the District over pay and other related issues. This hearing was commenced upon approximately fifteen (15) hours notice to counsel for the Knight, et al. Intervenors. 2. At the conclusion of the hearing, citing desegregation obligations of the District and PACT in addition to contractual obligations of PACT to the District as contained in the Master Contract between those parties, the Court ordered the teachers back to work on Tuesday, September 3, 1996. Further, the Court ordered PACT and the District to mediate the disputes between them before Mr. Gus Taylor, Chief Conciliator of the United States Department of Justice. 3. As ordered, the teachers returned the work on September 3, 1996, and on September 4, 1996, began the mediation process with Mr. Taylor. Schools were closed by the Board August 19-23; August 26-27; August 29-30. 4. It was clearly the intent of the Court's Order requiring mediation that the parties should mediate in good faith and without retaliation by the District against those teachers engaged in the strike. 5. Despite the Order of the Court for the teachers to return to work which undercut any negotiating position they may have had, the following relevant events have taken place since the order was delivered from the bench: (a) The District has engaged in pay practices which docked three days pay for every classroom teacher regardless of their circumstances on the first regularly scheduled payday. The District has announced actions to dock each classroom teacher regardless of their circumstances for five to seven (5-7) days in the second regularly scheduled pay period which means that there is a potential for many of the District's teachers on that payday to actually owe the District money. (b) The District has docked the pay of classroom teachers who crossed the picket line and worked on the one day that the board voted to hold school open. 2 ( c) Classroom teachers on paid leave of absence were docked the same number of days as teachers who were out on strike. Teachers on paid disability leave were docked the same pay as regular classroom teachers in spite of the fact that they did not participate in the strike. (d) At least one teacher on paid administrative suspension pending termination hearings was docked the same as other classroom teachers. (e) On the other hand, psychological examiners; speech therapists; support staff; and building level administrators were not docked any pay and no docking of pay is planned for the next regularly scheduled pay period. (f) The District is violating the master contract between the parties with regard to pay when schools are closed. For instance, the master contract does not provide for teachers to get their pay docked for such closures of school as inclement weather and the District did not dock pay after the 1988 Strike. (g) Not only are the actions with regard to docking pay contrary to the court's intent in its ruling from the bench, but also, the actions of the District in docking pay of classroom teachers is clearly retaliatory in nature contrary to the First Amendment to the Constitution of the United States. (h) The District has made an administrative decision that all makeup days will occur at the end of the school year and it did not alter the twenty-six (26) pay periods set forth in the Master Contract 3 6. The actions of the District seriously jeopardize the success of the mediation process and the successful implementation of the District's Desegregation Plan. 7. AH the Data phase factors for Preliminary Relief are in favor of PACT. WHEREFORE, Knight Intervenors pray that the court order an immediate hearing and, following said hearing, to make such temporary and permanent orders and rulings as will protect the integrity of the mediation process; protect the classroom teachers of the District from retaliation for the exercise of their constitutional rights; uphold their master contract; grant them attorney's fees; and all other relief to which they may be entitled. 4 ~ctfully submitted, '---~ I~ Richard W. Roachell Arkansas Bar No. 78132 ROACHELL LAW FIRM 401 West Capitol Avenue, Suite 504 The Lyon Building Little Rock, Arkansas 72201 (501) 375-5550 CERTIFICATE OF SERVICE I, Richard W. Roachell, do hereby certify and state that a true and correct copy of the foregoing was mailed, postage prepaid, on September 6, 1996 to the following persons: Mr. John W. Walker John W. Walker, P. A. 1723 Broadway Little Rock, AR 72201 Ms. Ann Brown ODM Heritage West Building, Ste. 510 201 East Markham Street Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 William P. Thompson and James M. Llewellyn, Jr. Thompson and Llewellyn 412 South 18th Street P. 0. Box 818 Fort Smith, Arkansas 72902-0818 5 Mr. Christopher Heller FRIDAY, ELDREDGE \u0026 CLARK 2000 First Commercial Building Little Rock, AR 72201 M. Samuel Jones III WRIGHT, LINDSEY \u0026 JENNINGS 200 West Capitol Avenue Little Rock, AR 72201 Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, AR 72201 Richard W. Roachell IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. BLYTHEVILLE SCHOOL DISTRICT, ET AL. FILED U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS SEP O 6 1996 JAMES W McCORMACK, CLERK By: ------D~E...,..P . ...,.C-LE=R-K PLAINTIFF DEFENDANTS INIERVENOR.5 INIERVENOR.5 INIERVENOR.5 BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER It is clear that the actions of the School District in docking teachers' pay is contrary to the Court's intent in its ruling from the bench after the hearing of August 29, 1996. Teachers' pay was not docked subsequent to the teacher strike of 1988. Furthermore, the master contract between the parties provides that there shall be twenty-six (26) pay periods during the school year and provides no docking of pay provisions for any circumstances such as inclement weather or other incidents or other circumstances that may interrupt the school year. Even though the Court undercut the bargaining position of the teachers by ordering them back to work, the teachers did honor the Court's Orders and have returned to the bargaining table with Mr. Taylor as mediator. This mediation process which the Court clearly intended to resolve the issues between the parties is severely threatened by the District's retaliatory action against select members of the teacher union in an effort by the District to crush the union or render it ineffective by creating economic hardship among its members. The- events that have taken place and the disparate impact of the docking of pay of the classroom teachers show that the District is bent not upon settlement of the division between the parties and healing the riff between them, but rather to punish the classroom teachers who will now have to wait until the end of the school year to receive their pay. The District did not change the twenty-six (26) period pay provisions of the master contract. Further, that some teachers at the next pay period may actually owe the District money creates such economic hardship with its attendant morale problem in the classroom teachers that the successful implementation of the District's Desegregation Plan may be irreparably harmed. Finally, the rights of freedom of speech and association guaranteed to all citizens of this country, including public employees, has been violated by the District's retaliatory action. To remedy this situation, the Court should, temporarily and permanently enjoin the District from deviating from its normal pay practices without singling out any sub-group of PACT for docking of pay; grant them attorneys fees and all other relief to which they may be entitled. 2 ~tfully submitted, ~~.C)__J__ Richard W. Roachell Arkansas Bar No. 78132 ROACHELL LAW FIRM 401 West Capitol Avenue, Suite 504 The Lyon Building Little Rock, Arkansas 7220 I (501) 375-5550 CERTIFICATE OF SERVICE I, Richard W. Roachell, do hereby certify and state that a true and correct copy of the foregoing was mailed, postage prepaid, on September 6, 1996 to the following persons: Mr. John W. Walker John W. Walker, P. A 1723 Broadway Little Rock, AR 72201 Ms. Ann Brown ODM Heritage West Building, Ste. 510 201 East Markham Street Little Rock, AR 7220 I Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 William P. Thompson and James M. Llewellyn, Jr. Thompson and Llewellyn 412 South 18th Street P. 0. Box 818 Fort Smith, Arkansas 72902-0818 3 Mr. Christopher Heller FRIDAY, ELDREDGE \u0026 CLARK 2000 First Commercial Building Little Rock, AR 72201 M. Samuel Jones III WRIGHT, LINDSEY \u0026 JENNINGS 200 West Capitol Avenue Little Rock, AR 72201 Mr. Stephen W. Jones 3400 TCB Y Tower 425 West Capitol Avenue Little Rock, AR 72201 ~.~ Richard W. Roachell RECEIVED IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT SEP 1 0 1996 Off ice of Desegregauon Morntonng LITTLE ROCK SCHOOL DISTRICT V. NO. 96-047EALR SERVICEMASTER MANAGEMENT SERVICES L.P. MRS. LORENE JOSHUA, ET AL. MOTION TO STRIKE CERTAIN PORTIONS APPELLANT APPELLEE APPELLEE OF THE JOSHUA INTERVENORS APPELLEE/ APPELLANT'S BRJEF ServiceMaster Management Services L.P. (\"ServiceMaster\"), for its motion to strike certain portions of the brief filed by the Joshua Intervenors (\"Joshua\") states: - ... -.,... ___... .... ~ 1. Joshua requested in a letter filed with the Court dated August 21, 1996, that it be heard with respect to \"argument one\" of the Little Rock School District (\"LRSD\") Brief as an appellee and that it be heard with respect to \"argument two\" of the LRSD Brief, which involves ServiceMaster, as an appellant. 2. ServiceMaster filed a response to Joshua's Motion on August 23, 1996, whereas ServiceMaster objected to Joshua's request that it be heard as an appellant with respect to argument two of the LRSD Brief. 3. On August 23, 1996, the Court granted Joshua's motion for an extension of time within which to file a brief as an appellee, and the Court denied, without prejudice, ServiceMaster's response, subject to renewal when the brief by Joshua is filed if circumstances warrant. 624\\MOTSTRIK.909 1 4. The brief filed by Joshua is titled: \"Brief of Appellee/Appellant Mrs. Lorene Joshua, ET AL.\" In addition, in its Brief, Joshua took the position of an appellee and appellant. 5. The following references are made in the Joshua Brief with respect to ServiceMaster: Issues Presented on Appeal, Issue number 3, page 1 of the Joshua Brief; Statement of the Case, Part B, page 11-12 of the Brief; and, Argument, Argument B, page 17-19 of the Brief. 6. Joshua advances arguments with respect to ServiceMaster which may only be properly made as an appellant in the case. 7. Joshua was served with a copy of the District Court's Order dated March 11, 1995, and failed to file an appeal of its own accord with respect to the District Court's Order concerning argument two, the ServiceMaster issue, as prescribed by the Rules of Appellate - Procedure. In addition, this appeal is not and cannot be characterized as a cross-appeal. 8. The status of Joshua in this appeal filed by the LRSD can only be entertained as an appellee with respect to argument one presented by the LRSD. WHEREFORE, ServiceMaster requests that all portions of Joshua's Brief which make reference to ServiceMaster be stricken as they are prejudicial to appellee ServiceMaster. 624\\MOTSTRIK.909 2 Respectfully submitted, GIROIR \u0026 GREGORY, PROFESSIONAL ASSOCIATION 111 CENTER STREET, SUITE 1900 LITTLE ROCK, AR 72201 (501) 372-3000 and - - John C. Everett, #70022 EVERETT, MARS \u0026 STILLS P.O. Box 1646 Fayetteville, AR 72702 (501) 443-0292 Attorneys for ServiceMaster Management Services BJYoseS.M:owe~ry, %~ Bar #90l23 CERTIFICATE OF SERVICE I certify that a copy of the foregoing Motion to Strike Portions of the Joshua's Intervenors Brief has been served on the following people by depositing copy of the same in the United States mail on this 9th day of September, 1996. Mr. Christopher Heller Friday, Eldredge \u0026 Clark 2000 First Commercial Bldg. 400 West Capitol Little Rock, AR 72201 Mr. John W. Walker John W. Walker, P.A. 17223 Broadway Little Rock, AR 72206 Mr. Travis Creed Roachell Law Firm 401 West Capital, Suite 504 Little Rock, AR 72201 Mr. Steve Jones Jack, Lyon \u0026 Jones, P.A. 3400 TCBY Bldg. Capitol \u0026 Broadway Streets Little Rock, AR 72201 624\\MOTSTRIK.909 3 Mr. Sam Jones Wright, Lindsey \u0026 Jennings 2200 Worthen Bank Bldg. 200 West Capitol Little Rock, AR 72201 Ms. Ann Brown Desegregation Monitor Heritage West Bldg., Suite 510 201 East Markham Street Little Rock, AR 72201 Ms. Elizabeth Boyter Arkansas Dept. of Education 4 State Capital Mall Little Rock, AR 72201 624\\MOTSTRIK.909 4 C IN THE UNITED STATES DISTRICT COURT' ~-  - ' \"~As EASTERN DISTRICT OF ARKANSAS .C._':_\",\" ) -A \") - --~ .)  - - ') WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT V. NO. LR-C-82-8'6- PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. RE: c erv~~ DEFENDANfS MRS. LORENE JOSHUA, ET AL. INIERVENORS KATHERINE KNIGHT, ET AL. SEP 1 1 1996 Oifioo of D(\u003cSvc.grsgation Mon~or~VENORS BLYTHEVILLE SCHOOL DISTRICT, ET AL. INIERVENORS KNIGHT, ET AL., RESPONSE TO PCSSD'S MOTION SEEKING EQUITABLE RELIEF Knight, et al. Intervenors, by and through their attorneys, ROACHELL LAW FIRM, for their Response to PCSSD's Motion Seeking Equitable Relief, state: 1. Admit paragraph 1 to the extent that the Pulaski Association of Classroom Teachers' (PACT) job action continued until September 3, 1996, when the Court ordered PACT members back to work. 2. Deny paragraph 2. Asserts affirmatively that PACT' s job action does not prevent PCSSD from delivering the educational services and desegregation programs outlined in the Desegregation Plan and by orders of this Court. Asserts affirmatively that the job action is only delaying the execution of the Desegregation Plan and orders of this Court for the current school year. 3. Denies paragraph 3. Asserts affirmatively that PACT is currently involved in litigation involving the precise issue of PACT' s job action in Pulaski County Chancery Court, Sixth Division, in the case Mike Wilson, et al. v. Pulaski Association of Classroom Teachers, No. IJ96-5788. .: ...... . Asserts affirmatively that PACT has filed a Motion for Joinder of PCS SD in that action because PCS SD is a necessary party to that action. Asserts affirmatively that they were not aware as of the date of the preliminary hearing of any breach of contract by the PCS SD except the Teacher Minimum Salary law. 4. Denies paragraph 4. 5. Denies each and every allegation ofPCSSD's Motion not specifically admitted herein. WHEREFORE, Knight lntervenors pray for an order of this Court denying PCSSD's Motion Seeking Equitable Relief; that the Court allow PACT to continue its job action pending resolution of the dispute between PCS SD and PACT; and for all other proper legal and equitable relief. Respectfully submitted, ~ . 0--L_ Richard W. Roachell Arkansas Bar No. 78132 ROACHELL LAW FIRM 401 West Capitol Avenue, Suite 504 The Lyon Building Little Rock, Arkansas 7220 I (501) 375-5550 CERTIFICATE OF SERVICE I, Richard W. Roachell, do hereby certify and state that a true and correct copy of the foregoing was mailed, postage prepaid, on September 10, 1996 to the following persons: Mr. John W. Walker John W. Walker, P. A. 1723 Broadway Little Rock, AR 7220 I Ms. Ann Brown ODM Heritage West Building, Ste. 510 201 East Markham Street 2 Mr. Christopher Heller FRIDAY, ELDREDGE \u0026 CLARK 2000 First Commercial Building Little Rock, AR 7220 I M. Samuel Jones III WRIGHT, LINDSEY \u0026 JENNINGS 200 West Capitol A venue Little Rock, AR 7220 I Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 William P. Thompson and James M. Llewellyn, Jr. Thompson and Llewellyn 412 South 18th Street P. 0 . Box 818 Fort Smith, Arkansas 72902-0818 3 Mr. Stephen W Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, AR 72201 Richard W. Roachell IN THE UNITED STATES DISTRICT COURT S::? : ~ .:.~3 EASTERN DISTRICT OF ARKANSAS J,.\u003c .. ~c: ','/ i~:~:-.:? ~,. -. .=. ~ cL----~ WESTERN DIVISION B, -_______ _-  _ '' LITTLE ROCK SCHOOL DISTRICT V. NO. LR-C-82-866 PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. BLYTHEVILLE SCHOOL DISTRICT, ET AL. BRIEF IN SUPPORT OF KNIGHT, ET AL.. RESPONSE TO PCSSD'S MOTION SEEKING EQUITABLE RELIEF Statement of tlte Facts L,_:-c .. :::--.r\u003c PLAINTIFF DEFENDANTS INIERVENORS INIERVENORS INIERVENORS Pulaski County Special School District (PCSSD) and Pulaski Association of Classroom Teachers (PACT) were unable to agree on teaching contracts for the 1996-97 school year before the school year began. PACT began a job action because of the failed contract negotiations. Several parents filed a complaint in Pulaski County Chancery Court, asking the Court for injunctive relief Mike Wilson, et al. v. Pulaski Association of Classroom Teachers, et al., Case No. U96-5788 . The Court denied Plaintiffs requests, and refused to order PACT teachers back to work at the time of the hearing. PACT filed a Motion Seeking Equitable Relief on or about August 27, 1996, in the abovecaptioned case. The Court held a hearing on August 28, 1996. The Court ordered teachers in PCSSD back to work on September 3, 1996. Argument At issue is whether the PCSSD has met its burden for this Court to issue a temporary restraining order or preliminary .injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. PCSSD must show (1) the threat of irreparable harm; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that the movant will succeed on the merits; and ( 4) public interest. Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981). There is no threat of irreparable harm on the PCSSD or desegregation because of the teacher strike. The Eighth Circuit has given this Court much discretion to modify details and marginal issues related to the Settlement Agreement. 949 F.2d 253 (1991). The agreed timetables for school are details and/or marginal issues within the Court's discretion to modify. A mere delay in the school year is a detail and/or marginal issue that the Court can modify. Thus, PACT' s job action does not affect the Desegregation case in a substantial way, and neither does it cause irreparable harm to the school district. However, the Court's order that broke PACT's job action greatly injures the bargaining position of PACT with PCS SD. \"The right to strike, as an important symbol of a free society, should not be denied unless such a strike would substantially injury paramount interests of the larger community.\" County Sanitation District No. 2, 69.9 P.2d at 848. Furthermore, PACT joined the Desegregation case to protect its bargaining position. \"An injunction does not settle a dispute -- it simply disables one of the parties.\" Burlington Northern R .. Co. at 107 S. Ct.1854. PACT's bargaining position has been disabled because of the injunction. 2 Furthermore, it is a matter of public _policy in the state of Arkansas to allow organized labor to bargain collectively. \"Freedom of organized labor to bargain collectively ... is declared to be the public policy of the state under Arkansas Constitution, Amendment 34.\" Ark. Code Ann.  11-3-301. Therefore, there is a great interest in letting PACT maintain its bargaining position with PCS SD by allowing it to continue in its peaceful job action. On the one hand, the Court's order renders moot the issue of the probability of success on the merits because ordering teachers back to work means that PCS SD has succeeded on the merits, only to the great detriment to the teachers' bargaining power. On the other hand, because the matter has been directed to federal mediators, success on the merits means that PCS SD and PACT agree to contract terms for the l 996-97 school year. This result would be no more of a success for PCS SD than it would be for PACT. PCSSD contends that it cannot afford to raise teachers' pay. However, the Courts have said repeatedly that lack of money is no excuse. PCSSD must be made to comply with Act 917 of the 1995 legislature for the 1996-97 school year. WHEREFORE, Knight Intervenors pray for an order of this Court denying PCS SD' s Motion Seeking Equitable Relief; that the Court allow PACT to continue its job action pending resolution of the dispute between PCSSD and PACT; and for all other proper legal and equitable relief Respectfully submitted, 3 ~.c:u___ Richard W. Roachell Arkansas Bar No. 78132 ROACHELL LAW FIRM 401 West Capitol Avenue, Suite 504 The Lyon Building Little Rock, Arkansas 72201 CERTIFICATE OF SERVICE I, Richard W. Roachell, do hereby certify and state that a true and correct copy of the foregoing was mailed, postage prepaid, on September 10, 1996 to the following persons: Mr. John W. Walker John W. Walker, P. A. 1723 Broadway Little Rock, AR 72201 Ms. Ann Brown ODM Heritage West Building, Ste. 510 20 I East Markham Street Little Rock, AR 72201 Mr. Timothy Gauger Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 William P. Thompson and James M. Llewellyn, Jr. Thompson and Llewellyn 412 South 18th Street P. 0. Box 818 Fort Smith, Arkansas 72902-0818 4 Mr. Christopher Heller FRIDAY, ELDREDGE \u0026 CLARK 2000 First Commercial Building Little Rock, AR 72201 M. Samuel Jones ill WRIGHT, LINDSEY \u0026 JENNINGS 200 West Capitol Avenue Little Rock, AR 7220 I Mr. Stephen W. Jones 3400 TCBY Tower 425 West Capitol Avenue Little Rock, AR 7220 I ~.0--L_ Richard W. Roachell 11:20 WRIGHT LINDSEY \u0026 JENN I t--!GS NO.083 POO9/ O20 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT vs. NO. LRC-82-866 PULASKI COUNTY SPECIAL SCHOOL blSTRICT NO. 1, et al. MRS. LORENE JOSHUA, et al. KATHERINE KNIGHT, et al. BLYTHEVILLE SCHOOL DISTRICT, et al. PCSSD's RESPONSE TO MOTION FOR TEMPORARY RESTRAINING ORDER PLAINTIFF DEFENDANTS INTER VEN ORS INTERVENORS INTERVENORS The Pulaski County Special School District (\"PCSSD\"), for its response to the motion - of Pulaski Association of Classroom Teachers (\"PACT\") for a temporary restraining order to prohibit PCSSD from \"docking\" teachers' pay for strike days, states: 1. PACT cannot demonstrate any of the Dataphase requirements lo warrant this Court's granting of injunctive relief. 2. PACT must show (1) the threat of irreparable harm, (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant, (3) the probability that movant will succeed on the merits, and (4) the public interest. 3, PACT cannot establish irreparable harm. It seeks money -- and it is beyond peradventure that purported injury which can be recompensed by monetary damages is not irreparable harm. 11 : 21 WRIGHT LINDSEY \u0026 JENNINGS NO. 083 P010/ 02O 4. 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