The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
ORDER DECLARING THE LITTLE ROCK SCHOOL DISTRICT UNITARY
In early 1998, the Little Rock School District ("LRSD") and the Joshua Intervenors*fn2 ("Joshua") negotiated and voluntarily entered into the Revised Desegregation and Education Plan (the "Revised Plan"),*fn3 as a way of settling what was then over forty years of more or less continuous desegregation litigation.*fn4 On April 10, 1998, the Court approved the Revised Plan,*fn5 which required LRSD to substantially comply with hundreds of desegregation obligations in order to achieve unitary status and release from court supervision.*fn6 Many of these obligations go well beyond what either the United States Supreme Court or the Eighth Circuit Court of Appeals has held is constitutionally required in order for a school district to be deemed unitary. Nevertheless, by voluntarily entering into the Revised Plan, LRSD became contractually bound to satisfy all of the specified desegregation obligations.*fn7
Since the meaning of some of the terms of the Revised Plan were questioned by the Eighth Circuit Court of Appeals in its 2006 decision,*fn8 I quote, as background for the following discussion, the Restatement of Contracts:
(1) Where the parties have attached the same meaning to a promise or agreement or a term thereof, it is interpreted in accordance with that meaning.*fn9
A. LRSD's March 15, 2001 Application for Unitary Status
On March 15, 2001, LRSD moved for unitary status on the ground that it had substantially complied with all of the obligations in the Revised Plan.*fn10 On June 25, 2001, Joshua filed an Opposition to LRSD's Compliance Report*fn11 which argued that LRSD was not in substantial compliance with most of the obligations in the Revised Plan. On March 15, 2002, LRSD filed a Motion for an Immediate Declaration of Unitary Status.*fn12
On May 30, 2002, Joshua filed a Response*fn13 opposing that Motion.
I conducted a series of unitary status hearings during the second half of 2001 and the first half of 2002. During these hearings, over forty witnesses testified, and the parties introduced into evidence thousands of pages of exhibits.
On September 13, 2002, I entered a Memorandum Opinion (the "September 2002 Decision") finding that LRSD had substantially complied with all of its obligations in the Revised Plan except those specified in § 2.7.1.*fn14 Section 2.7.1 of the Revised Plan obligated LRSD to satisfy the following obligations:
LRSD shall assess the academic programs implemented pursuant to § 2.7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievements. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program.*fn15
I found that, while LRSD had implemented numerous § 2.7 programs designed to improve the academic achievement of African-American students, the evidence established that it had done very little to assess the effectiveness of those programs, on a year-to-year basis, as required by § 2.7.1.
The Findings of Fact in LRSD I discussed the substantial evidence which revealed that LRSD's top administrators and Joshua both construed § 2.7.1's requirement that LRSD "shall assess the academic programs implemented pursuant to § 2.7 after each year" to mean that LRSD must perform "program assessments" and "program evaluations."*fn16 Witnesses for LRSD and Joshua testified that both parties understood the term "assess," as used in § 2.7.1, to be a term of art requiring LRSD to prepare annual assessments and evaluations of the § 2.7 programs. While § 2.7.1 does not mention the word "evaluation," the evidence established beyond peradventure that LRSD clearly understood that its obligation to assess the § 2.7 programs required it to prepare not only program assessments but also program evaluations in order to determine the effectiveness of those programs in improving the academic achievement of African-American students.
B. The 2002 Compliance Remedy
In subpart A of the 2002 Memorandum Opinion, I tracked the language the parties used in § 2.7.1 and required LRSD to assess each of the programs implemented under § 2.7 to improve the academic achievement of African-American students during the entire 2002-03 school year and the first semester of the 2003-04 school year. I did not spell out that LRSD was required to prepare evaluations of specific § 2.7 programs because the testimony of the parties during the 2002 unitary status hearing made it clear that they understood the term "assess" to include both assessments and evaluations of the § 2.7 programs. Therefore, to comply with subpart A of the 2002 Compliance Remedy, LRSD was expected to continue to prepare program assessments and to prepare program evaluations of the most promising § 2.7 programs that it planned to implement during the 2002-03 school year and the first semester of the 2003-04 school year.
Subpart B required LRSD to maintain written records documenting how it had gone about assessing the § 2.7 programs.
Subpart C required LRSD to complete and file program evaluations on the fourteen § 2.7 programs listed on page 148 of LRSD's Final Compliance Report. This Final Compliance Report,*fn17 filed on March 15, 2001, detailed everything that LRSD had done to meet its compliance obligations under each section of the Revised Plan. Importantly, this Final Compliance Report reflects precisely how LRSD construed its desegregation obligations under each section of the Revised Plan. On page 148, under the heading "Section H Program Evaluation," LRSD cited "Section 2.7.1" as creating the obligation to prepare fourteen program evaluations of § 2.7 programs. Since 1998, Dr. Steven Ross has worked extensively with PRE to improve the program evaluation process. LRSD accepted his recommendation and hired Dr. John Nunnery, who was supposed to prepare most of the evaluations of the fourteen specifically identified § 2.7 programs.*fn18
In the March 15, 2002 Final Compliance Report, LRSD unequivocally admits that it knew, understood, and construed the obligation in § 2.7.1 to assess the § 2.7 programs as requiring it to prepare evaluations of some of the § 2.7 programs.*fn19
In the Final Compliance Report, LRSD stated that, as of March 15, 2001, PRE*fn20 staff and Dr. Nunnery had prepared evaluations on all fourteen of the § 2.7 programs identified on page 148. During the 2002 unitary status hearings, however, LRSD administrators admitted that only six of the fourteen evaluations actually had been completed. These fourteen evaluations of specific § 2.7 programs were supposed to have been prepared during the 1999, 2000, and 2001 school years (at the rate of approximately four per year) using testing and performance data generated during those three school years. Subpart C of the 2002 Compliance Remedy required LRSD to prepare the eight missing program evaluations from the three previous school years. Everyone understood that, in preparing these evaluations, LRSD would use student testing and performance data from the 1999 through 2001 school years to determine the effectiveness of those § 2.7 programs during those school years. Thus, subpart C of the 2002 Compliance Remedy required LRSD to catch up on the annual § 2.7 program evaluations, for the previous three years, which the Final Compliance Report erroneously stated LRSD had already prepared.
So, subpart A of the 2002 Compliance Remedy required LRSD to prepare assessments and evaluations of § 2.7 programs during the 2002-03 school year and the first semester of the 2003-04 school year. Because subpart C of the 2002 Compliance Remedy required LRSD to prepare evaluations of § 2.7 programs to determine their effectiveness in school years before the 2002-03 school year, everyone understood that the eight page-148 program evaluations required in subpart C could not be used by LRSD to satisfy the program evaluation obligation in subpart A, which required it to prepare evaluations of the § 2.7 programs during the 2002-03 school year and the first six months of the 2003-04 school year.*fn21 On the record this admits of no doubt.
Finally, LRSD was given until March 15, 2004, to demonstrate that it was in substantial compliance with § 2.7.1, as outlined in subparts A, B, and C of the 2002 Compliance Remedy.*fn22
C. The Eighth Circuit Affirms the September 2002 Decision
Joshua appealed the September 2002 Decision to the Eighth Circuit Court of Appeals. On March 2, 2004, the Court entered an opinion affirming the September 2002 Decision.*fn23 Because LRSD did not cross-appeal, it gave up any right to complain about the obligations imposed on it in subparts A, B, and C of the 2002 Compliance Remedy.
D. LRSD's March 12, 2004 Application for Unitary Status
On March 12, 2004, LRSD filed a Compliance Report*fn24 seeking unitary status on the ground that it had substantially complied with § 2.7.1 of the Revised Plan and subparts A, B, and C of the 2002 Compliance Remedy. On April 15, 2004, Joshua filed papers*fn25 opposing LRSD's request for unitary status.
On June 14 and 15, 2004, a unitary status hearing was held. During this hearing, it was revealed that, shortly after I entered the 2002 Compliance Remedy, numerous top LRSD administrators had resigned, including the Superintendent; Dr. Bonnie Lesley, the Associated Superintendent in charge of Curriculum and Education; and most of the rest of the employees in the PRE Department. LRSD's remaining administrators testified at the hearing that because of this mass exodus they were unsure about how LRSD should go about satisfying subpart A of the 2002 Compliance Remedy. This was not brought to my attention until the 2004 hearing. Inexplicably, LRSD decided it could satisfy subpart A of the 2002 Compliance Remedy by preparing two "global evaluations" of LRSD's Literacy Curriculum and its Math and Science Curriculum.
As previously mentioned, subpart A of the 2002 Compliance Remedy used the same language contained in § 2.7.1 of the Revised Plan, and required LRSD to assess the § 2.7 programs.*fn26 After the September 2002 Decision, LRSD's administrators decided the obligation to assess § 2.7 programs could be satisfied by preparing only two "global evaluations" of LRSD's Literacy curriculum and Math and Science curriculum. This establishes clearly that LRSD construed the phrase "assess § 2.7 programs," as used in § 2.7.1, to mean that it was required to prepare program evaluations -- not just program assessments.
On June 30, 2004, I entered a Memorandum Opinion (the "June 2004 Decision"), holding that these two global evaluations fell far short of § 2.7.1's requirement that LRSD must annually assess specific § 2.7 programs in order to determine their effectiveness in improving the academic achievement of African-American students.*fn27
The best way to understand the shortcomings of LRSD's "global approach" to complying with § 2.7.1 is through a concrete example of what the plain language of § 2.7.1 and subpart A of the Compliance Remedy actually obligated LRSD to do.
During the 2002-03 and 2003-04 school years, LRSD implemented numerous § 2.7 programs to improve the academic achievement of African-American students. One such program, which was implemented in elementary schools throughout the district, was the Pre-K Literacy Program. During the 2002 and 2004 unitary status hearings, testimony established that the Pre-K Literacy Program was one of LRSD's most promising § 2.7 programs. If LRSD had hired Dr. Ross or some other similarly qualified consultant to perform evaluations of the Pre-K Literacy program and three or four other specific § 2.7 programs, during the 2002-03 school year and the first semester of the 2003-04 school year, I would have had no difficulty finding that it had substantially complied with the program evaluation obligation contained in § 2.7.1 and subpart A of the 2002 Compliance Remedy.
Instead of evaluating specific § 2.7 programs, however, LRSD's administrators tried to satisfy § 2.7.1 by hiring Dr. Ross and another outside consultant to perform "global evaluations" of LRSD's overall Literacy Curriculum and its Math and Science Curriculum. These evaluations amounted to nothing more than a survey of LRSD's complete program curricula in the areas of literacy, math, and science. Neither evaluation attempted to address the effectiveness of any of the specific § 2.7 programs implemented to improve the academic achievement of African-American students. As a result, these global evaluations provided no useful guidance on how any of the specific § 2.7 programs were working to improve African-American achievement. During the June 2004 evidentiary hearing, Dr. Ross, himself, (and the other experts who prepared the two global evaluations) admitted that these "step 1" global evaluations did not satisfy the plain language of § 2.7.1 (which, as noted above, required LRSD to prepare "step 2" evaluations of specific § 2.7 programs to determine their effectiveness in improving the academic achievement of African-American students).
As was set forth in the June 2004 Decision, the obligations in § 2.7.1 go to the very heart of what Joshua contracted to receive from LRSD in agreeing to the Revised Plan:
It is impossible to overstate the importance of § 2.7.1 to LRSD's African-American students. Unless something is done to improve their academic achievement, many of them, who do not possess proficient skills in reading and math, will face difficult and uncertain futures. Because 70% of its students are African-American, LRSD should be devoting a substantial percentage of its educational resources to solving this crucially important problem that will burden the lives and career trajectories of so many of its students. It is my fervent hope that LRSD's administrators and its Board realize that LRSD must make the long-term commitment to solve this problem, not because a federal court says that it must, but because it is the right thing to do.*fn28
Based on the evidence introduced during the evidentiary hearing on June 14 and 15, 2004, I was at a loss to understand how LRSD could have concluded that the two "global evaluations" substantially complied with § 2.7.1 of the Revised Plan and subpart A of the 2002 Compliance Remedy. Accordingly, I denied LRSD's request for unitary status.*fn29
During the June 14 and 15, 2004 unitary status hearing, LRSD administrators complained that, because subpart A of the 2002 Compliance Remedy did not spell out precisely what they were supposed to do to satisfy the obligations in § 2.7.1, they were unsure of how to proceed. I was puzzled by this professed confusion so, to avoid any future confusion about what the language in § 2.7.1 required, the 2004 Compliance Remedy spelled out the specific obligations that LRSD must meet in order to satisfy the requirements of § 2.7.1 of the Revised Plan.*fn30 However, I did so with some reluctance and only because I was genuinely concerned that, unless I restated those obligations in very specific terms, LRSD might once again fail to substantially comply with § 2.7.1:
In the  Compliance Remedy, I was reluctant to set forth too much detail about how LRSD should structure its program assessment process. Professional educators ought to be able to do a better job than I could in formulating and implementing this process; but LRSD is found wanting in its handling of its duties under subparts A and B of the Compliance Remedy.*fn31
E. The Eighth Circuit Affirms the June 2004 Decision
LRSD appealed the June 2004 Decision to the Eighth Circuit Court of Appeals. Ironically, on appeal, LRSD argued, among other things, that the 2004 Compliance Remedy was too specific and imposed obligations that went beyond what it had agreed to do under § 2.7.1 of the Revised Plan. On June 26, 2006, the Eighth Circuit entered its opinion affirming the June 2004 Decision.*fn32
However, both the majority and dissent expressed concern that some aspects of the 2004 Compliance Remedy may have gone beyond the obligations LRSD agreed to undertake in § 2.7.1 of the Revised Plan.
F. LRSD's October 16, 2006 Application for Unitary Status
On October 16, 2006, LRSD filed a Compliance Report*fn33 detailing everything that it has done to satisfy the 2004 Compliance Remedy and § 2.7.1 of the Revised Plan. LRSD asserts that, because it has now substantially complied with the 2004 Compliance Remedy, it should be declared unitary and released from court supervision and monitoring. On November 16, 2006, Joshua filed Objections to LRSD's Compliance Report and Opposition to LRSD's Request for Unitary Status.*fn34
On January 20, 21, and 27, 2007, I conducted another unitary status hearing. LRSD called fifteen witnesses who testified about LRSD's substantial compliance with § 2.7.1 of the Revised Plan, as those obligations are contained in the 2004 Compliance Remedy. Joshua called nineteen witnesses who testified that LRSD needed to do more still in order to comply with its obligations. The parties again introduced into evidence thousands of pages of exhibits.
Because the Eighth Circuit's recently expressed concerns about whether the 2004 Compliance Remedy imposed obligations on LRSD that went beyond those contained in § 2.7.1, I believe it is important for me to address that issue before I reach the merits of LRSD's substantial compliance.
II. LRSD's Obligations Under The 2004 Compliance Remedy And Why It Was Required By § 2.7.1 of the Revised Plan
A. LRSD Must Re-establish Its PRE Department
As previously discussed, between mid-2002 and June of 2004, LRSD allowed its PRE Department to collapse.*fn35 During the June 2004 unitary status hearing, Mr. Dennis Glasgow, who in June of 2003 was appointed Interim Associate Superintendent of Instruction and Curriculum to replace Dr. Lesley, testified that:
PRE was short of personnel . . . and . . . he intended to propose to the Board that it set a high priority on hiring a team of well qualified and experienced professionals capable of reinvigorating PRE.*fn36
In section A of the 2004 Compliance Remedy, I required LRSD to hire the well qualified and experienced team of professionals that according to Mr. Glasgow was necessary to re-establish an effective PRE Department. I required that this group of professionals include: (1) a director comparable to former director Dr. Lease, someone who had a Ph.D. and experience in designing, preparing, and overseeing the preparation of formal program evaluations, and in formulating a comprehensive program assessment process to determine the effectiveness of the § 2.7 programs designed to improve the academic achievement of African-American students; (2) experienced statisticians like those who had worked under Dr. Lease; and (3) other appropriate support personnel necessary to operate an effective PRE Department.
As indicated above, Section 2.7.1 required LRSD to assess, on an annual basis, the § 2.7 programs to determine their effectiveness in improving the academic achievement of African-American students. And, as I have previously explained, LRSD and Joshua both interpreted the term assess in § 2.7.1 to be a term of art that required LRSD to perform annual program assessments and program evaluations of the § 2.7 programs to determine their effectiveness.*fn37 Finally, this is precisely how LRSD construed § 2.7.1, as evidenced by page 148 of the March 15, 2001 Final Compliance Report and in its decision to prepare two global evaluations to satisfy subpart A of the 2002 Compliance Remedy.*fn38
Similarly, while nothing in the Revised Plan explicitly required LRSD to have a PRE Department, it appears that it would have been impossible for LRSD to discharge its program assessment and program evaluation obligations under § 2.7.1 without one. By the time of the 2004 unitary status hearing, LRSD's PRE Department was no longer functioning and had only one employee, a statistician. By ordering LRSD to re-establish its PRE Department with an experienced and qualified staff, I was requiring LRSD only to restore the status quo ante regarding PRE Department staffing and operations -- something that was essential if LRSD ever expected to meet its obligations under § 2.7.1. I do not believe that section A of the 2004 Compliance Remedy imposed a single new obligation on LRSD that was not part of what it originally agreed to do in order to discharge its obligations under § 2.7.1 of the Revised Plan.*fn39
I hark back to § 201 of the Restatement of Contracts quoted in the introduction.
B. LRSD Must Create and "Deeply Embed" a Comprehensive Program Assessment Process
Section B of the 2004 Compliance Remedy, required LRSD to use its PRE Department, in consultation with Dr. Ross, to devise a "comprehensive program assessment process" and then to "deeply embed" that process as a permanent part of LRSD's curriculum and instruction program. I defined "comprehensive program assessment process" to mean and include both "formal evaluations" of key § 2.7 programs and "informal program assessments."*fn40
During the June 2004 unitary status hearing, LRSD witnesses testified that, each school year, LRSD implemented numerous § 2.7 programs to improve the academic achievement of African-American students. Some of those programs were pilot projects that were only offered at one school to a relatively small number of students. Other § 2.7 programs had been used for several years in numerous schools and were regarded as key § 2.7 programs that appeared to offer the most promise in improving the academic achievement of African-American students. The testimony during the June 2004 unitary status hearing made it clear that LRSD and Joshua both had a good understanding what the key § 2.7 programs were. I do not believe that requiring LRSD to evaluate only key § 2.7 programs is a new obligation under § 2.7.1, especially since LRSD had been performing annual evaluations on its most important or key § 2.7 programs since it entered the Revised Plan in 1998.
The dissent in LRSD v. NLRSD, et al.*fn41 discussed at length the reasons why requiring LRSD to "deeply embed" its program assessment process as a permanent part of LRSD's curriculum and instruction program imposed a new contractual obligation on LRSD that was not contained in § 2.7.1. of the Revised Plan. The dissent pointed out that: (1) I did not "identify any objective standards by which [I intended] to measure whether LRSD had succeeded in meeting this "deeply embedded" requirement"; (2) the "deeply embedded" requirement was "impossibly subjective"; and (3) I created "the unworkably subjective 'deeply embedded' standard . . . out of whole cloth in the 2004 Remedy."*fn42
Upon mature reflection, I wholeheartedly agree with the dissent's criticism of my decision to require LRSD to "deeply embed" the program assessment process as a permanent part of its curriculum and instruction program. Section 2.7.1 of the Revised Plan and subpart A of the 2002 Compliance Remedy required LRSD to create and implement a program assessment process capable of allowing it to prepare annual program assessments and program evaluations of the § 2.7 programs as a way of determining the effectiveness of those programs in imposing the academic achievement of African-American students. Nothing in either § 2.7.1 or the 2002 Compliance Remedy can fairly be construed to mean that LRSD must "deeply embed" the program assessment process as a permanent part of its curriculum and instruction program.*fn43 Additionally, as the dissent points out, trying to apply an entirely subjective "deeply embedded" standard is a bridge too far --like trying to reach the mirage in the desert.
In § 2.1 of the Revised Plan, LRSD agreed to act in "good faith": LRSD shall in good faith exercise its best efforts to comply with the Constitution, to remedy the effects of past discrimination by LRSD against African-American students, to ensure that no person is discriminated against on the basis of race, color, or ethnicity in the operations of LRSD ...