The opinion of the court was delivered by: WOODS
HENRY WOODS, UNITED STATES DISTRICT JUDGE
SETTLEMENT OF STATE'S LIABILITY
The parties agreed to settle the state's liability as outlined generally by the Court of Appeals in its decision of February 9, 1988, Little Rock School District v. Pulaski County Special School District, 839 F.2d 1296, 1306, (8th Cir. 1988) et seq. Although this settlement was effectuated by a legislative appropriation, a successful lawsuit was filed attacking all appropriations of the 1989 regular session of the Legislature. Chancellor Lee Munson held these appropriations invalid since they violated Article 5, Section 30 and Article 5, Section 40 of the Arkansas Constitution. His decision was affirmed by the Supreme Court of Arkansas Fisher v. Perroni, 299 Ark. 227, 771 S.W.2d 766 (1989). In response to this ruling, Governor Clinton called a special session of the Arkansas Legislature to convene June 20, 1989.
A new bill, SB 151, approving the settlement was considered by the House of Representatives on Friday, June 23, 1989, having been passed by the Senate. After an amendment was placed on the bill and it was called up on third reading and final passage, a bizarre series of events occurred. A pair was stricken and one legislator's voting machine key was allegedly stolen or was misplaced. The votes were cast and the ballot sounded. The Speaker declared that the bill had failed by one vote. The House then adjourned. The bill was however sent to the Senate stamped "Failed" and without the Speaker's approval endorsed thereon. The Senate, still in session, concurred in the House Amendment and sent the bill to the Governor, who signed it. The actions of the Senate and the Governor were apparently taken to facilitate a lawsuit to determine whether the bill had actually passed.
Be that as it may, I cannot await the ultimate resolution of this matter. The Little Rock School District (LRSD) and Pulaski County Special School District (PCSSD) are in dire financial straits. I must assume my responsibility to assess the extent of the State's liability. There are three areas involved in the state's liability:
(1) The magnet schools area;
(2) Compensatory education for the 1988-89 school year; and
(3) Other past and future liability of the State (the major component).
Hearings were held on the magnet school issue (1), supra, by Special Master McCutcheon, who filed Findings of Fact, Conclusions of Law and Recommendations on March 10, 1989 (Docket # 1169).
The parties asked me to hold my ruling in abeyance since they were working on an overall settlement and desired to incorporate his formulations therein. This was done, and the provisions with regard to the magnet funding claims of the three districts were included on pages 2-7 of the settlement agreement. Reference is made thereto for further elucidation of the Master's Findings of Fact, Conclusions of Law and Recommendations, which I now approve. The State is ordered to make immediate payment of these funds to the districts.
Special Master McCutcheon held hearings as to the State's liability for the 1988-89 school year but withheld, at the request of the parties, making findings of fact and conclusions of law pending settlement negotiations. Since the settlement has apparently now been vitiated, the parties are given twenty (20) days to submit proposed findings of fact and conclusions of law to Special Master McCutcheon so that a determination can be made as to the State's liability for the 1988-89 school year.
Hearings have not been held as to the other liability issues of the State. Those hearings will be scheduled as soon as practicable.
I accept the recommendation of Special Master McCutcheon regarding the appointment of a Metropolitan Supervisor. As previously announced, Eugene Reville will serve as the Metropolitan Supervisor for a period of three years, commencing July 1, 1989. In light of the inadequacies in the proposed plans, his first priority shall be to oversee, direct and insure the development of acceptable, workable and constitutional student assignment plans. Although student assignments need not necessarily be made across district lines, if such assignments serve to reduce busing, promote educational goals, and reduce costs, they should not be precluded. While it is true that school district lines should not be "casually ignored or treated as a mere administrative convenience," it is well-settled that "boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief." Milliken v. Bradley, 418 U.S. 717, 741, 41 L. Ed. 2d 1069, 94 S. Ct. 3112 (1974) (Milliken I).
Contrary to the situation in Milliken I, all of the school districts in this case have been adjudicated to be constitutional violators. All have had a full and fair opportunity to be heard. Not only were the North Little Rock School District (NLRSD) and PCSSD found liable for interdistrict segregatory acts, but both have been found liable for segregatory acts within their own districts. All three districts have had four years since my consolidation order was reversed to develop independent autonomous plans to remedy the conditions that offend the Constitution within their districts. None has been successful. See, Milliken v. Bradley, 433 U.S. 267, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977) (Milliken II).
In their objections to the Findings of the Special Master, NLRSD and PCSSD contend that the mandates of the Eighth Circuit constitute the complete remedy for their interdistrict violations. Even if that were true, the Special Master's Findings and Recommendations clearly indicate that interdistrict cooperation is required to remedy each district's intradistrict violations. In any event, all student assignments should be approved and announced by December 31, 1989 for students in all three districts.
Subsequently, the educators from each district responsible for the functions recommended for merger should present their recommendations and ideas as to the most effective and educationally sound methods for merger. The suggestions and recommendations should be presented to Mr. Reville by March 1, 1990.
In order to accomplish his charge, the Metropolitan Supervisor must have an adequate budget. Mr. Reville should prepare and submit to the court a budget for approval by August 15, 1989. The costs associated with the Metropolitan Supervisor will be apportioned as follows: the amount previously ordered for the Pulaski County Educational Cooperative (Co-op) shall be applied toward the budget of the office of the Metropolitan Supervisor. It is apparent that the Co-op has not served the function envisioned by the court when it was established. See Stipulation, Exhibit "A." In the Settlement Agreement, all parties agreed that the Co-op should be eliminated. Joint efforts should now be coordinated through the Metropolitan Supervisor. The balance of the budget will be apportioned among the school districts on a per pupil basis. Mr. Reville is authorized to employ a professional staff of up to four people. His salary is set at $ 98,500 per year. In addition to each district's portion of Mr. Reville's salary, it should add an amount equal to its portion of fringe benefits (e.g. hospitalization insurance), using the percentage used in calculating fringe benefits for the highest ranking person in that district. This "fringe benefit" amount will apply toward offsetting the penalty Mr. Reville will suffer by leaving the New York pension program prior to the expiration of his six-year contract in Buffalo. The Greater Little Rock Chamber of Commerce has offered its assistance in determining whether additional funds are required to make Mr. Reville whole, and if so, in attempting to secure those funds from resources in the community so as not to further burden the taxpayers.
The Metropolitan Supervisor is hereby vested with the authority to direct and oversee the completion of a comprehensive long-range desegregation plan, and to give counsel and direction to the superintendents of the school districts. He shall have access to staff members and data in all three districts. He should meet frequently with superintendents and school boards, and work cooperatively with them. In the final analysis, however, Mr. Reville must have requisite authority to get the job done. Thus, necessarily, in matters concerning desegregation and the expenditure of funds required for successful implementation of plans, he must have the final word.
My position on consolidation of the three districts in Pulaski County is well known. In my initial remedial opinion in this case, I took the position that consolidation was the best remedy for solving the thorny problems involved in integrating these districts. My view has not changed and some of my comments have proved prophetic. "Failure to utilize a county-wide consolidation plan would exacerbate white-flight problems in the County's residential growth." Little Rock School District v. Pulaski County Special District, 597 F. Supp. 1220, 1225 (E.D.Ark. 1984). There has been massive white flight from the Little Rock District. The Little Rock District is now more than 65% black at the elementary level. In that opinion I made other comments which have proved to be close to the mark. "The alternative of merely extending LRSD to lines to be conterminous with the City of Little Rock boundaries would have at most minimal and temporary results and would not adequately address the constitutional violations found in this Court's prior opinion." Id. at 1224-25. The Court of Appeals, however, chose this alternative. Little Rock School District v. Pulaski County Special District, 778 F.2d 404 (8th Cir. 1985). In the four years that followed, the districts have not effectuated autonomous plans that have contributed to the desegregation of public schools in Pulaski County. When I issued my original opinion, there were four virtually all-black elementary schools in the Little Rock School District. Now the parties propose a plan under which there would be eight such schools. PCSSD still has twelve schools outside the guidelines set by the Eighth Circuit Court of Appeals. NLRSD has one school outside the guidelines and others precariously close.
For a time I considered again ordering consolidation on the basis of changed conditions, particularly since Special Master McCutcheon has found that "consolidation is now justified." He noted that "the Senate Education Committee of the 1989 General Assembly recommended passage of a bill which would have consolidated these three school districts." Because this action came late in the session, the bill did not come to a floor vote.
The legislature, in its Regular Session, requested that I strike ARTICLE II(J) of the proposed settlement agreement which reads as follows:
J. Recognition of Autonomy
The State, Joshua and LRSD recognize that PCSSD and NLRSD are independent, sovereign, desegregating school districts operating pursuant to court orders and agreements and that this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation activities with the LRSD and others.
This request can only be interpreted as an expression of legislative intent that I do nothing that might interfere with future consolidation of these districts, either voluntarily or by legislative act.
It is significant that the Bi-racial Committee of the LRSD endorsed unanimously the recommendations of the Special Master concerning merged functions. Their report concluded with this statement, "In conclusion, we emphasize that the only viable long term desegregation solution is mandatory, countywide assignments -- consolidation." The Bi-racial Committee's "Response to Recommendations of Special Master Aubrey V. McCutcheon, Jr." is attached as Exhibit "B." The Bi-racial Committee in PCSSD apparently made no evaluation of the Recommendations, nor did the Desegregation Team in NLRSD.
I have reviewed the long-range plans submitted by the school districts, the Special Master's Findings of Fact, Conclusions and Recommendations, and the objections filed by the parties. Beyond peradventure the student assignment portions of the PCSSD and LRSD plans, as submitted, are insufficient and unconstitutional.
The Bi-racial Advisory Committee of the LRSD, after evaluating the Findings and Recommendations of the Special Master, unanimously concluded, "After thorough review of [Special Master] McCutcheon's statement on the plans submitted by the three districts, we endorse his recommendations, finding that generally the recommendations are sound and will promote desegregation throughout the metropolitan area."
In LRSD's proposed plan almost one-fourth of the elementary schools are contemplated to be all black. The entire mandatory busing burden at the elementary level for desegregation purposes falls on black children. LRSD, in its objections points out that a few white elementary children are bused, but the fact is that not one white elementary child would be mandatorily bused east of University Avenue. All of the historically "black" schools lie east of University Avenue, and all are proposed to be all-black incentive schools.
Double funding is promised for the all-black schools. Yet it is impossible to determine from the submissions how the funds will be spent. LRSD, in its Objections, contends that the plans were intentionally left vague so that patrons could have input into the programs. LRSD admits that the double funding is guaranteed for only six years, but contends that it "retains its commitment to provide compensatory and enhancement funding to any school which might remain racially identifiable." That "commitment" does not appear in the plan.
Several of LRSD's "general objections" to the Special Master's Findings and Recommendations require comment. LRSD states: "Most of the deficiencies in implementation of 1988-89 Plan took the form of short-lived delays and they have been cured." For the 1988-89 "stabilizing" school year, LRSD was required, in its court-approved plan, to follow a very detailed plan for improving schools with a black enrollment outside the Eighth Circuit guidelines. These schools, called "Major Enhancement" schools, were to have, inter alia, extensive building renovation, enhanced programing and a lower teacher-pupil ratio. The Special Master's Findings and Recommendations regarding LRSD's deficiencies during this "stabilizing" year were obviously made to inform the court of serious implementation problems and lack of follow-through.
LRSD next argues that "a number of alleged 1988-89 Plan violations involve things not required by the Plan," and "LRSD provided much information to the Special Master that is not reflected in the Findings." I find these two assertions troubling. LRSD apparently considers itself "bound" only by commitments explicitly set out in its plans. Yet it attempts to justify ambiguities and lack of detail in its plan by noting that "much information" was provided to the Special Master. The rather obvious question arises as to why this important information was not included in subsequent revisions of the proposed plans.
LRSD further objects that the Special Master's Findings "fail to give due consideration to the significant accomplishments of LRSD and the other parties (including the cooperation reflected in the Interdistrict Desegregation Plan and the Settlement Agreement) during the 1988-89 school year." As I have previously announced, the court does indeed welcome cooperation from the parties. However, in formulating and implementing solutions to the complex problems inherent in school desegregation, it is essential to understand the separate and distinct responsibilities of the school districts and the district court (which includes the court-appointed Special Master). The primary responsibility for constructing and presenting a desegregation plan rests with the school authorities. "The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now." Green v. County School Board, 391 U.S. 430, 439, 20 L. Ed. 2d 716, 88 S. Ct. 1689 (1968) (emphasis original). "The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a 'white' school and a '[black]' school, but just schools." Id. at 442. "In Brown II the Court squarely held that school authorities have the primary responsibility for elucidating, assessing, and solving these problems . . . ." Milliken v. Bradley, 433 U.S. 267, 280, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977) (Milliken II).
"The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation . . . ." Id. at 439. Further, it is "incumbent upon the district court to weigh [the school board's claim that its plan promises meaningful and immediate progress] in light of any alternatives which may be shown as feasible and more promising in their effectiveness." Id.
The United States Supreme Court has, in unambiguous terms, held that a district court (and thus a special master) should strictly scrutinize a plan that proposes one-race schools. "The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971). The Court went on to flatly hold that "in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition." Id. This is not new law. If counsel for the parties were surprised by the scrutiny given their proposals, they should not have been.
In its recent holding in the landmark case of Brown v. Board of Education, No. 87-1668 (10th Cir. June 2, 1989), the Court of Appeals for the Tenth Circuit has alluded to settled principles of school desegregation law. The Brown decision makes it clear that the proposed plans, as presented, could never result in unitary status for LRSD or PCSSD. I agree with the Special Master's conclusion that we have come too far to settle for a plan which leads not down the path toward integration and unitary status, but rather down a path which will require yet another "plan" at the end of six years. I further agree with his conclusion that all the children in Pulaski County, Arkansas deserve to rely upon a plan which will serve far longer than six years.
In Brown, the court held: "Where racial imbalance in student assignment is still extreme in a system that formerly mandated segregation, appellate courts have reversed findings of unitariness without looking to other factors." Id. at 18. The parties should heed the warnings of Brown. I cannot and I will not approve any plan which does not promise to lead to unitary status in these districts.
All three districts object to the Special Master's Findings and Recommendations because, "the legitimate concerns articulated by the Special Master are insufficient to support the remedy of interdistrict receivership."
As the parties well know, I favor voluntary, innovative and education-centered strategies for desegregation of schools. To that end, I have appointed people to assist in this case who share that philosophy. But these methods of desegregation require scrupulous attention to detail, extensive planning, adequate contingency plans, extraordinary cooperation and communication -- in short, an enormous amount of work. Thus far, the parties have failed to come forward with such a well-planned desegregation proposal. Thus, all are in default.
The Special Master was charged with the duty of reviewing, evaluating and assessing the submissions of the parties. It was not his job to "write the plans," and indeed the districts would have rightly objected to such a charge. The burden was squarely upon the school authorities to devise a plan and to take whatever steps necessary to convert to a unitary system. See Green, supra.
In the absence of adequate plans proposed by the school authorities, however, judicial authority may be invoked. "Judicial authority enters only when local authority defaults." Swann, supra, at 16. "In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system." Id. at 16. The Special Master has not recommended an interdistrict receivership, nor will I order that remedy. However, it is clear, that the districts require more than evaluation and critique of their submissions. Obviously, the districts need the full-time expertise of an educator with experience in the actual construction of a workable plan. For that reason, I have adopted the recommendation that a Metropolitan Supervisor be appointed. That the districts characterize this as "receivership" is both inaccurate and disappointing.
I accept the Special Master's recommendation that the concepts of attendance zones and feeder patterns be approved. I also agree that if the framework proposed by LRSD is to be accepted, details must be included. If the parties intend to proceed with the all-black incentive schools, approval will depend on exacting detail, including reasonable and workable plans for the integration of those schools.
As the parties return to the task of constructing workable student assignment plans, the well-settled principles of the law should be kept in mind.
However, it is not enough to file a plan only incorporating the policy statements . . . . A plan should not only specify 'a positive commitment to a reasonable program;' it should also state what that program is. This embodies (1) the steps to be carried out, and (2) the time schedule to be followed in doing so.
"The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution." Swann at 15.
"The measure of any desegregation plan is its effectiveness." Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 37, 28 L. Ed. 2d, 577 91 S. Ct. 1289 (1971).
Brown, supra at 19-20. [emphasis original]
The ultimate test of what the school district has done is its effectiveness, most significantly its effectiveness in eliminating the separation of white and minority children. While a district is not always required to choose the most desegregative alternative when it selects a particular option, the result of the sum of the choices made by the district must be to desegregate the system to the maximum possible extent.
Neighborhood school plans must be both neutrally administered and effective. A plan that is administered in a scrupulously neutral manner but is not effective in producing greater racial balance does not fulfill the affirmative duty to desegregate . . . . Ultimately, whether the use of a neighborhood school plan in a particular case is consistent with a school district's duty to desegregate turns on whether the "school authorities [have made] every effort to achieve the greatest possible degree of actual desegregation taking into account the practicalities of the situation."
Id. at 23-24, quoting, Davis, supra, at 33.
NLRSD has objected to the Findings and Recommendations, citing this court's prior February 27, 1987 approval of its desegregation plan. Specifically NLRSD objects to the Special Master's Findings relating to the lack of plans to deal with the substantive education elements of desegregation. NLRSD concedes that the "sufficiency of implementation" was "largely an open question during the Master's tenure." NLRSD goes on to question the authority of the Special Master to make findings relative to compliance with its desegregation plans. The objection regarding the power of the Special Master to ensure compliance in NLRSD, as well as in LRSD and PCSSD, is without merit and need not be commented upon.
NLRSD's arguments of " res judicata " and/or mootness have been made and rejected by the court of appeals:
The district court has been instructed to maintain jurisdiction until full integration is achieved. . . . The initial motion in this case is another example of the court's continuing jurisdiction over desegregation of the North Little Rock schools. This case should not be dismissed and a case or controversy sufficient to satisfy Article III will exist until such time as the district court determines that a unitary system of education has been achieved and the North Little Rock School District is thoroughly integrated.
As the Fifth Circuit has stated, "a school system is not automatically desegregated when a constitutionally acceptable plan is adopted and implemented." United States v. Texas Education Agency, 647 F.2d 504, 508 (5th Cir. 1981). See Pate v. Dade County School Board, 588 F.2d 501, 504 (5th Cir.) (per curiam), cert. denied, 444 U.S. 835, 100 S. Ct. 67, 62 L. Ed. 2d 44 (1979) ("[we have recognized] that the district court has a continuing responsibility to appraise the system in the light of actual conditions and experience and make required changes to assure the maintenance of a unitary system"); Thompson v. Madison County Board of Education, 496 F.2d 682, 686-87 (5th Cir. 1974).
Davis v. Board of Education of North Little Rock, 674 F.2d 684 (8th Cir. 1982).
NLRSD asserts that it "has chosen to focus not on race and racial disparity but on achievement deficits of individual children." Of course, the eventual goal of any district ought to be "colorblind," race-neutral policies with respect to all its endeavors. However, in order to counter the many years of de jure color-conscious, discriminatory policies and practices, some affirmative, race-conscious, remedial measures are required. "Under the relevant Supreme Court decisions, mere absence of invidious intent on the part of the school district is not sufficient to satisfy its 'heavy burden' of proof; the district's duty is to act affirmatively, not merely to act neutrally." Brown at 19.
In fact, the NLRSD Supplementary Plan states:
The District recognizes, however, that the regular curriculum is often insufficient in aiding disadvantaged students, particularly disadvantaged minority students suffering the effects of centuries of societal discrimination, to achieve mastery of basic skills. Therefore, within the framework of a comprehensive curriculum, which meets and exceeds State Standards and which is structured to meet the varying individual needs of all students, the North Little Rock School District must address identified remedial needs of disadvantaged minority students.
NLRSD Supplementary Plan, at 4.2.
Compensatory and remedial programs must be aimed at correcting the specific Constitutional violations of the NLRSD, rather than "the effects of centuries of societal discrimination." Thus the remedy must be designed "as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Milliken I, at 746.
The Findings of Fact, Conclusions and Recommendations of Special Master McCutcheon, attached as Exhibit "C," are approved as submitted, except as specifically noted in this Order. As previously announced, the school assignments in LRSD for the 1989-99 school year are approved as recommended by the Special Master, except that the pairings of Fulbright, Romine, McDermott, and Franklin shall not be implemented. Instead, LRSD is directed to focus time and effort toward completing the Incentive School programs.
In PCSSD, for the 1989-90 school year, the Special Master's recommendations for a 42% maximum black enrollment is approved. PCSSD will be permitted to use voluntary efforts to meet this goal. NLRSD will be permitted to use voluntary efforts for the 1989-90 school year to bring its schools into compliance with guidelines of the Court of Appeals for the Eighth Circuit.
All proposals and plans submitted by the parties and recommended for approval by the Special Master are approved.
IT IS SO ORDERED this 27th day of June, 1989.
IN the UNITED STATES DISTRICT COURT, EASTERN DISTRICT of ARKANSAS, WESTERN DIVISION
LITTLE ROCK SCHOOL DISTRICT, PLAINTIFF VS. PULASKI COUNTY SPECIAL SCHOOL SCHOOL DISTRICT NO. 1, et al., DEFENDANTS, MRS. LORENE JOSHUA, et al., INTERVENORS
STIPULATION OF THE LITTLE ROCK SCHOOL DISTRICT, THE PULASKI COUNTY SPECIAL SCHOOL DISTRICT, AND THE NORTH LITTLE ROCK SCHOOL DISTRICT FOR THE CREATION OF A PULASKI COUNTY EDUCATIONAL COOPERATIVE
2. The three (3) school districts in this litigation were instructed by the Eighth Circuit Court of Appeals to explore cooperative programs. Little Rock School District v. Pulaski County Special School District, 778 F.2d 404, 436.
3. The parties agree that an educational cooperative should be formed and modeled after the fifteen (15) other regional cooperatives; and funded by the State in the same manner as the existing cooperatives. The name of the cooperative should be Pulaski County Educational Cooperative.
4. The parties to the stipulation agree the creation of interdistrict magnet schools, M to M transfers, and interdistrict transportation systems increase the need for cooperation and provides new avenues for further cooperative ventures. The opportunity to participate in cooperative ventures would strengthen each district's ability to provide an equitable and effective educational program for its students.
5. An interdistrict venture of this type would facilitate each district's desegregation efforts and would aid the avoidance of unanticipated effects of one district's plan on the plans of the other districts.
6. The parties agree that, within the structure of the educational cooperative, they will explore the possibility of cooperative efforts of mutual benefit. These will include, but will not be limited to, discussing the possible cooperative efforts listed by the Court of Appeals in its opinion, LRSD v. PCSSD, 778 F.2d 404, 430-31 (8th Cir. 1985).
7. The governing body of the cooperative will be comprised of the Superintendents of the member school districts.
KAPLAN, BREWER & MILLER, P.A.
HOLLINGSWORTH & HELLER, P.A.
Suite 350, Gazette Building
Attorneys for Little Rock School District
WRIGHT, LINDSEY & JENNINGS
2200 Worthen Bank Building
Attorneys for Pulaski County Special School District
Attorneys for North Little Rock School District