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December 11, 1989


The opinion of the court was delivered by: WOODS


 The parties in this case have petitioned the court for approval of a financial settlement (settlement) between the defendant State of Arkansas and all other parties in the case. This latest proposed settlement was negotiated and submitted for approval after I had rejected the proposed settlement of student assignments, after I had found the school districts in default in their obligation to formulate a constitutional plan to restore the child victims of racial discrimination to the place they would have enjoyed absent illegal acts, and after I had appointed a Metropolitan Supervisor. *fn1"

 The parties negotiated this settlement with full knowledge that the there was not a court-approved plan in place and that the final plan presented to this court will be presented by the court-appointed Metropolitan Supervisor. It is somewhat unusual to settle money matters before approval of a plan, but because the parties have bargained at arms length, because I believe settlement of money issues will speed the implementation of a workable plan under the guidance of the Metropolitan Supervisor, and because the money involved appears to be reasonable, though modest, I will accept the amount of financial settlement as full satisfaction of the State's liability in this matter, as recommended by the Special Master. *fn2"


 "Those who cannot remember the past are condemned to repeat it." *fn3" The liability of the State to her children in this county attaches, not because the State is a "deep pocket," but because of the intentional acts and omissions of publicly elected officials, acting on behalf of the people of Arkansas. Those intentional acts of racial discrimination are a matter of public record, and sadly, of national and international infamy.

 The initial reaction of the school board of the Little Rock School District Board of Education to the landmark case, Brown v. Board of Education 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686(1954), was one of reason. Three days after the Brown decision, the following statement issued:

It is our responsibility to comply with Federal Constitutional Requirements and we intend to do so when the Supreme Court of the United States outlines the method to be followed.
While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this court has held violated the Fourteenth Amendment.

 Cooper v. Aaron, 358 U.S. 1, 8, 3 L. Ed. 2d 5, 78 S. Ct. 1401 (1958).

 When LRSD admitted nine black students to Central High School in September, 1957, State officials, acting in their official capacities, led the opposition.

[The plan to admit the nine black students met] with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school "off limits" to [black] students. As found by the District Court in subsequent proceedings, the Governor's participation had not been requested by the school authorities and was entirely unheralded.

 Id. at 9.

 In August, 1958, Governor Faubus called a special session of the legislature to meet in August of 1958. In that session, the legislature passed legislation: authorizing the governor, by proclamation, to close any or all public schools within any school district pending a referendum "for" or "against" the "racial integration of all schools within the school district"; and authorizing students to transfer to segregated schools across district lines if the schools they ordinarily attended were to be desegregated.

 In an opinion rendered in September, 1958, the Supreme Court of the United States summed up the unconstitutional acts of officials of the State of Arkansas to that time:

The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements vilifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.

 Id. at 15.

 Three days after the Supreme Court's September, 1958, ruling in Cooper v. Aaron, Faubus, by gubernatorial proclamation, closed all four high schools in the Little Rock School district.

 Unfortunately, into the 1960's, official State action fostered the ends of racial hatred and discrimination. For example, an Arkansas Real Estate Commission regulation provided that "a realtor should never be instrumental in introducing into a neighborhood a character of property or occupancy, members of any race or nationality, or any individuals whose presence will clearly be detrimental to property values in that neighborhood." In one instance cited to this court, a realtor violated this regulation by selling a home to a black family in a residential area where no blacks lived and was advised by the Arkansas Real Estate Commission that his "misconduct" might prevent his licensure.

 The systematic official policy of the State of Arkansas in those years, as acted out by her elected officials, of ensuring segregated housing and of vigorous resistance to the rule of law visited untold harm on all the citizens of this State. School children, black and white, were left to pay the price for the unconscionable manner in which politicos pandered to the basest of human emotions.

 Repudiation of the philosophy and antics of the Faubus administration by current State officials cannot excuse the debt incurred. Rather, it requires both an acknowledgement of the debt owed and a commitment of the resources necessary to right the wrong.

 The State's recognition of the devastating effects on its children of the intentional acts and omissions of prior leaders can be the end of what is, doubtlessly, the ugliest era in this State's history, and the beginning of a new day.


 When the Court of Appeals for the Eighth Circuit remanded the case for further hearings on financial liability of the State, I appointed a Special Master with expertise in school desegregation and school finance to recommend, inter alia, the State's financial obligation to the school children under the mandate from the Eighth Circuit. The Special Master conducted months of hearings where the parties litigated the State's financial liability for compensatory and remedial education necessitated by state-fostered segregation. The parties requested that the financial issues be litigated separately: (1) the State's reimbursement to LRSD for compensatory education provided from the time of the filing of the lawsuit in 1982 through the 1987-88 school year; (2) the State's obligation for compensatory and remedial education in LRSD for the 1988-89 "stabilizing year"; (3) the State's alleged miscalculation of aid to all three districts under the Minimum Foundation Program Aid (MFPA) formula; and (4) the State's obligation for the long-term plans the districts were in the process of developing.

 Before the first settlement document was presented, the Special Master had recommended, and I had ordered, an adjustment and correction of the manner in which the State calculated the districts' MFPA, resolving one of the financial issues. Furthermore, the issue of payments due for the 1988-89 school year had also been fully litigated. The Special Master had agreed, at the parties' request, to hold his recommendation on that issue in abeyance pending the outcome of settlement negotiations. In short, the most time-consuming portion of the litigation of the State's financial liability had been completed before the parties reached a settlement. Nonetheless, a settlement of issues is preferred even when those issues have already been litigated.


 Special Master McCutcheon has recommended to the court that the amount of the settlement be approved. His recommendation was made after he presided over a two-day hearing to clarify and explain each provision of the settlement. Each party was asked, in that hearing, to specify which, if any, provisions of the proposed settlement agreement, if modified, would cause a withdrawal from the settlement. At the conclusion of the hearing, all such clauses necessary to the settlement had been identified by the parties.

 The parties have filed objections to the Recommendations of the Special Master filed October 4, 1989. However, no party has contested the Findings of Fact. Accordingly, I hereby adopt the following Findings of Fact:

1. The parties have resolved all disputes relative to calculations of money to be paid by the State of Arkansas, to each school district under the terms of the settlement.
2. The parties, by their language in II. D. of the March 1989 submission, intend to limit the District Court's jurisdiction to require the use of traditional desegregative tools to remedy the effects of prior segregatory acts, by proscribing additional interdistrict magnet schools, additional spaces in existing magnet schools and expansion of magnet programs.
3. The parties believe that the use of Interdistrict Schools will be as successful in desegregating the three school districts as ...

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