Little Rock School et al v. Pulaski Cty School et al

Filing 5412

ORDER: The Court confirms Tiffany Ellis as a representative of the new sub-class of intervenors. 5393 objection is overruled on Tiffany Ellis and overruled without prejudice as premature on Takeena Wilbon. JNPSD must depose Wilbon by 9/17/2018. Renewed motion, or an agreed motion demonstrating that she is qualified to serve, due by 10/17/2018. Nominees for new representatives for the PCSSD group due by 9/17/2018, too. Signed by Judge D. P. Marshall Jr. on 7/17/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
LITTLE ROCK SCHOOL DISTRICT, et al.

PLAINTIFFS

No. 4:82-cv-866-DPM
PULASKI COUNTY SPECIAL SCHOOL
DISTRICT; JACKSONVILLE/NORTH
PULASKI SCHOOL DISTRICT, et al.

DEFENDANTS
INTERVEN ORS

LORENE JOSHUA, TIFFANY ELLIS, et al.
ORDER

Some issues about the class representatives need deciding.
1. The Court confirms Tiffany Ellis as a representative of the

new sub-class of intervenors, the group composed of black children
attending JNPSD, their parents, and other adults in loco parentis.
JNPSD' s objections to her service are overruled.

The Court has

studied her deposition, plus all the other materials submitted. Would
she adequately represent this group? FED. R. Crv. P. 23(a)(4); Rattray
v. Woodbury County, 614 F.3d 831, 835 (8th Cir. 2010). Yes. As the

intervenors point out, context is particularly important. The class has
existed for decades; the live dispute is implementation of parts of the
remedy-JNPSD's

compliance

with

Plan

2000

1n

academic

achievement, discipline, facilities, monitoring, and staffing. Without
exception, JNPSD' s authorities are about adequacy at the certification
stage. E.g., Rattray, 614 F.3d at 834-35; In re Monster Worldwide, Inc.

Securities Litigation, 251 F.R.D. 132 (S.D.N.Y. 2008). The circumstances

here are different. Rule 23(a)(4)' score concerns remain, of course, but
the Court's inquiry must be differently focused. Because this case is
so far down the road, the fighting issues are fewer. Ellis will thus
have a smaller role with fewer decisions, albeit important ones.
Ellis is a sub-class member. Her twin boys are JNPSD students,
rising sixth graders. They attended pre-K at Harris and kindergarten
through second grade at Taylor. After moving to Dupree during their
third grade year, they attended fourth and fifth grades there and are
headed to middle school.
schooling:

president for three years of the Parent-Teachers

Organization at Taylor;
classroom;

Ellis has been deeply involved in their

a volunteer monitor at lunch and in the

and at one point a district employee, paid to monitor

students during lunch. She served on a committee that dealt with
security issues. She's been engaged on academic issues and discipline
issues, involving her children and others. She has concerns in both
areas. She has had first-hand experience with three of the district's
facilities. She follows district issues on social media and in the press,
and has attended at least one school board meeting.

She believes

JNPSD needs more male teachers of color to serve as role models. She
understands that the point of this case is to ensure that all children are
treated as equals. The record indicates her good character. Ellis' s
interests align with other JNPSD parents, and those acting in place of
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parents, on behalf of black students. Alpern v. UtiliCorp United, Inc.,
84 F.3d 1525, 1539 (8th Cir. 1996).
The Court concludes that Ellis can and will vigorously protect
the sub-class members' interests. At present, her understanding of
this lawsuit is too limited. She's not a lawyer and need not develop a
lawyer's knowledge of the issues. But she must deepen and broaden
her understanding of the case. At her deposition, for example, she
was confused about exactly what Plan 2000 is. She thought it was a
scholarship program, perhaps confusing it with PCSSD' s salutary
efforts related to the Donaldson Scholars. She has a copy of the Plan,
provided by counsel, but had only read at it, rather than studying it.
She pledged to fill this gap. Ellis is a longtime United Cerebral Palsy
employee, a high school graduate with three years of studies at
Pulaski Tech, and the Court is confident she will follow through on
learning more about this tangled case and the areas in which the new
district remains under Court supervision. Given the stage of this case,
this is a manageable task. JNPSD asked Ellis at her deposition what
label she would give herself in terms of the schools. Ellis responded:
"[C]oncerned parent. ... And not just a parent to my kids; for the
ones who don't have parents that are as active as I am in the school,
that will speak up for them when they see something wrong." NQ

5397-1 at 58-59. In collaboration with counsel, that's what the sub-

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class representative must do - on academic achievement, discipline,
facilities, monitoring, and staffing.
The experience, abilities, and credentials of Mr. Walker and
Mr. Pressman are beyond dispute.

Their stature, and long

involvement in this case, also raise a concern, though.

As JNPSD

argues, the representative can't simply lend her name to counsel's
lawsuit. In re Monster Worldwide, Inc. Securities Litigation, 251 F.R.D.
at 135;

7A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE§ 1766 at 372 (3d ed. 2005). Mr. Walker has
devoted much of his professional life to school desegregation in our
State. One could say with truth that this is his lawsuit. But the deeper
truth is that this case belongs to JNPSD' s non-white students and the
adults who care for them. Ellis now has a fiduciary obligation to all
those people. She must, of course, rely on counsel's expertise, but she
must also question and second-guess them.

They're the coaches;

she's now the team's owner. Her deposition makes plain that she's
quite capable of challenging persons with expertise and authority
when she believes confrontation is necessary. That's the kind of check
she must provide on counsel, as she stands up for these students and
their families.

They come first, not the lawyers, notwithstanding

counsel's good intentions.
2. JNPSD' s objections to Wilbon are overruled without prejudice
as premature. A confluence of circumstances - counsel's schedules,
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Wilbon' s parental obligations, this Court's deadlines, a tornado in the
vicinity- prevented her deposition from occurring as planned. Her
appointment remains tentative.

JNPSD must depose her by

17 September 2018 and may file any objections to her service by
17 October 2018.

Wilbon has three children spread across three

JNPSD schools. It would be better to have more than one sub-class
representative, and to have a person with these kinds of broad district
connections to serve alongside Ellis.
3. The dispute about the JNPSD sub-class representatives also
revealed something about the original class representatives - the
Joshua Intervenors - who stepped forward more than three decades
ago. All those individuals have either passed away, moved out of the
districts, or lost touch with class counsel. NQ 5393 at 2; NQ 5393-2 at 811.

PCSSD's black students, their parents, and those acting in loco

parentis for them need representatives.

The Intervenors must

nominate at least two by 17 September 2018. PCSSD may conduct
discovery, formal and informal, about the nominees' fitness to serve.
Objections,

or

an

agreed

motion

16 November 2018.

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to

appoint,

due

by

*

*

*

JNPSD' s objection, NQ 5393, is overruled on Tiffany Ellis,* and
overruled without prejudice as premature on Takeena Wilbon.
JNPSD must depose Wilbon by 17 September 2018.

Renewed

objection, or an agreed motion demonstrating that she is qualified to
serve, due by 17 October 2018. Nominees for new representatives for
the PCSSD group due by 17 September 2018, too.
So Ordered.
D.P. Marshall (r.
United States District Judge
17 ~ ).0/8

*The Court directs the Clerk to update the docket to add Tiffany
Ellis as an intervenor. Given that her appointment remains tentative,
there's no need to add Wilbon yet.
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