Little Rock School et al v. Pulaski Cty School et al
ORDER partly granting and partly denying 5238 Motion. JNPSD is unitary, and is released from Court supervision on all of Plan 2000 § L's staffing obligations, except on § L(3) incentives. JNPSD will be unitary on Plan 2000 § ; H's facilities obligations if it implements its 2018 master facilities plan as modified by this Order. JNPSD is released from supervision on facilities except for its obligation to file a progress report by 7/1/2019, and each year thereafter, until it completes its facilities plan. The Court retains jurisdiction, of course, to ensure that the District follows through. Signed by Judge D. P. Marshall Jr. on 9/25/2018. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK SCHOOL DISTRICT, et al.
PULASKI COUNTY SPECIAL SCHOOL
PULASKI SCOOL DISTRICT, et al.
LORENE JOSHUA, TIFFANY ELLIS, et al.
Summary. The Jacksonville/North Pulaski School District asks
the Court to declare its facilities and staffing unitary. JNPSD requests,
in the alternative, an order holding that the District will be unitary if it
implements its 2018 master facilities plan with some modifications.
The Ellis intervenors oppose these requests.
premature and, in any event, lack merit.
They say they' re
Federal Rule of Civil
Procedure 60(b)(5) governs JNPSD's motion.
JNPSD descends, of
course, from the Pulaski County Special School District.
Arkansas, the Districts, and the intervenors settled a large part of this
case in 2013, their agreement contemplated JNPSD' s creation. In due
course, it came into being. The new District inherited all of PCSSD' s
remaining obligations under Plan 2000, the "particularization of
federal law applicable to these parties."
Knight v. Pulaski County
Special School District, 112 F.3d 953, 955 (8th Cir. 1997). The current
question is whether JNPSD has, to the extent practicable, complied in
good faith with its desegregation obligations on facilities and on staff.
Freeman v. Pitts, 503 U.S. 467, 492 (1992). Plan 2000' s provisions on
these two issues are in the margin.
The Court agrees with the
intervenors on a threshold point: JNPSD has the burden of proof. The
District is right, though, to emphasize the special circumstances
presented: JNPSD inherited Plan 2000' s obligations; it is likewise
entitled to lean on PCSSD' s compliance with those obligations insofar
as they concern the new District.
The Court has benefited from the testimony and exhibits
received at the five-day trial in February.
truthfully say, pushed-by the Court, the parties covered much
ground. The Court has also drawn freely on what it has learned in
presiding over the detachment-related proceedings since 2013.
Whether JNPSD has complied in good faith with these two parts of
Plan 2000 turns, in large measure, on the credibility of the witnesses.
The Court has made those calls. All material things considered, the
Court concludes that, with the exception of incentives for certain
teachers, JNPSD is unitary in staffing; it is not unitary in facilities; but
the District will be if it complies with the current master plan, as
modified by this Order. To state a fiscally obvious but nonetheless
important point, like districts across Arkansas, JNPSD will require
continued substantial support from the State through partnership
funding (or some substantially similar program) to meet its facilities
Facilities.* The foundation of JNPSD's facilities obligations is "a
plan so that existing school facilities are clean, safe, attractive[,] and
H. School Facilities
(1) The PCSSD shall prepare, with the help of consultants, as
necessary, a plan so that existing school facilities are clean, safe,
attractive[,] and equal. The plan shall address alternatives for funding
its implementation. The Board of School Directors shall approve a
plan not later than 150 days after the court's approval of this Plan.
The Joshua Intervenors shall be given a 14 day period to comment on
the content of the plan prior to its adoption.
(2) An elementary school, located around 145th Street, and a
middle school or junior high school in the Crystal Hill/Maumelle area
will be built. The Board will address the development of a plan for
new school construction during the term of this Plan if funds are
sufficient, including its funding, and report its conclusions not later
than 150 days after the court's approval of this Plan. Moreover, the
PCSSD shall not close schools which are located in predominantly
African-American areas absent reasons of compelling necessity (which
does not include the opposition of white patrons to attending such
(3) The PCSSD shall notify the Joshua Intervenors of plans for
constructing new schools and for adding capacity to existing schools.
The notice shall identify the capacity of the proposed facility, the area
of the system to be served, and the projected impact on the racial
make-up of the students in each school expected to be affected by the
new construction. The Joshua Intervenors shall have a period of 14
days in which to provide input concerning each such proposal.
equal." PLAN 2000 § H(l). JNPSD has a plan, duly adopted by the
school's board, and annually updated as required by Arkansas law.
The District has been engaged in facilities planning for three years. As
this Court has already held, JNPSD has made a strong and ambitious
start with the new high school, which is partly built. Ng 5187. The
District's recent decision to build a new middle school, rather than
renovate an existing facility, is equally ambitious and prudent. These
state of the art facilities will be clean, safe, attractive, and more they'll be excellent.
They'll also serve all JNPSD students equally
because they'll be the school home for every JNPSD student in those
The intervenors have no real quarrel with all this.
They're concerned, though, about JNPSD's plans for the elementary
schools - in particular, that the District's plan for replacing all the
elementary schools will not be completed for some sixteen years.
Before the Court explores that deep issue, two other facilitiesrelated provisions of Plan 2000 can be addressed summarily. Most of
§ H(2) applies to PCSSD, not JNPSD. The part that does apply-the
obligation not to close schools in predominantly African-American
areas absent compelling necessity- has been met.
evidence that JNPSD has closed such a school. The District has also
satisfied its obligation under § H(3) to notify the intervenors about
facility-related plans and their likely effects, plus consider any prompt
response. The District is unitary in its § H(2) and § H(3) obligations.
Back to the plan for replacing the elementary schools.
combined replacement for the Tolleson and Arnold Drive schools
opened in August 2018. There are four others. Dupree and Pinewood
are scheduled to be replaced in August 2022. That leaves Taylor and
Bayou Meto, both scheduled for replacement in 2034. There are no
plans to replace the Adkins pre-K facility. It serves the entire district,
so there is no equality dispute. The challenge there, of course, will be
maintenance to keep Adkins clean, safe, dry, and as up to date as
possible. Here again, there was no real dispute: this is being done.
The intervenors are right. Sixteen years is just too long to make
the children attending Taylor, about 70% of whom are black, and
Bayou Meto, more than 80% of whom are white, wait for facilities that
are equal to other JNPSD elementary schools, especially the new one.
The District's 2018 master plan contemplates phase II expansions in
2023-2025 in the new high school and middle school, based on
projected enrollment growth.
Needing more space will be a good
problem to have. But fulfilling JNPSD' s Plan 2000 commitment to
equal facilities within its District must come first.
To its credit, JNPSD acknowledged and embraced this obligation
at the trial. The District pledged to replace Taylor and Bayou Meto as
quickly as possible. The District went further: it pledged to prioritize
replacing those two elementary schools ahead of any expansions of
the new high school or middle school. If JNPSD can't do all this at the
same time, then it will build the new elementary facilities first. That
commitment puts Taylor and Bayou Meto on track for replacement in
about eight years.
JNPSD's plan is extraordinary. Within approximately a dozen
years of its creation, the District will have built a new high school, a
new middle school, and four new elementary schools. JNPSD' s good
faith is demonstrated by the plan itself and the progress already
made. It's not just paper. The new elementary school has opened and
the new high school will open next fall. Multi-purpose buildings have
been added at Taylor and Bayou Meto because they're at the back of
the line for complete replacement. Those buildings will be integrated
into the replacement facilities.
The community hitched up with a
7.6 mill increase in real property taxes. Arkansas is in harness, too,
partnership funding, or some equivalent state assistance, is essential
for JNPSD to meet its desegregation obligations through this solid and
reasonable facilities plan.
Both horses are necessary to pull this
The Court is persuaded by the testimony from Mr. Tony Wood,
Dr. Charles Stein, and Dr. Bryan Duffie about the finances involved on
facilities in particular and in the District as a whole. Schools are much
more than buildings, and it's essential to keep JNPSD healthy,
financially and otherwise. Teachers and staff must be paid fair and
competitive salaries. Equipment must be bought and maintained and
replaced in due course. Facilities must be taken care of. Debt must be
repaid. The Court is convinced that JNPSD' s 2018 master facilities
plan, as modified, keeps the District on path to do all these things,
while also providing clean, safe, adequate, and - soon - equal facilities
to all its students.
The Court therefore approves JNPSD's 2018 master plan with
• The replacement elementary schools will be completed as
quickly as possible;
• JNPSD will apply for state funding through the partnership
program, or the then-existing equivalent program, no later
than year one of the 2023-2025 project funding cycle for
support of the Taylor elementary and Bayou Meto
elementary replacement projects;
• Taylor and Bayou Meto will be replaced before any phaseII expansion projects at the high school or the middle
school, unless the replacements can be done at the same
time as one or both of the expansions without hindering
completion of the new elementary schools; and
• All new elementary facilities will be equal to the new
elementary school that opened in August 2018.
By July 1st each year starting in 2019, JNPSD must file a facilities
report to the Court.
For good cause, and in light of JNPSD' s
substantial partial compliance with its Plan 2000 § H facilities
obligations, the Court releases the District from those obligations
except to the extent provided in this Order.
see also Jenkins v. State of Missouri, 122
R. CIV. P. 60(b)(5);
F.3d 588, 599-600 (8th
If JNPSD implements and completes its 2018 master
facilities plan, as modified, it will be unitary In facilities In
approximately 2026. The Court looks forward to that day.
Plan 2000' s staffing obligations come in four parts:
recruiting racially diverse applicants for administrator vacancies;
(1) The PCSSD shall recruit applicants for each available
administrative position, by internal and external means, in a manner
designed to communicate, broadly, its availability and to develop a
racially diverse pool of applicants. The Assistant Superintendent for
Desegregation shall, with the cooperation of the Assistant
Superintendent for Personnel, be informed of the make-up of each
such applicant pool and they shall have the authority to direct that
additional recruitment take place prior to the offering of the position
to a particular applicant.
(2) The PCSSD shall engage in recruitment so that new
teachers are selected from a racially diverse pool of applicants. The
Assistant Superintendent for Desegregation shall monitor the
recruitment process so that recruitment is extensive and sustained,
and the hiring process so that no policy, practice, or custom has the
purpose or the effect of imposing an upward limit on the proportion
of black teachers.
maintaining programs and providing incentives for early childhood,
primary grade, and secondary core teachers, plus assigning them
where they're most needed;
and avoiding racially identifiable
schools. JNPSD has substantially complied in good faith with all its
obligations in three of these four areas and in most of the other area.
The Court was impressed with the District's firm intentions, across the
board, to eliminate, insofar as practicable, any vestige of segregation
in its people.
The law doesn't require perfection, but rather a
opportunities for teachers and staff of all races. JNPSD, the Court is
convinced, is almost there in staffing.
First, some general points. JNPSD is right about the first round
of hiring. PCSSD drove the process for the 2015-2016 year, when the
new District stood up.
JNPSD Exhibit 9.
acknowledged in August 2015 that PCSSD, which still included
(3) The PCSSD shall continue to implement programs, policies
and/ or procedures which result in an increase in the number of
African-American early childhood teachers, primary grade teachers,
and secondary core teachers, including offering incentives for AfricanAmerican teachers to obtain certification in these areas, and to assign
those teachers to the PCSSD schools where the greatest disparity
(4) The PCSSD will allocate teachers and other professional
staff in a manner which avoids the racial identification of schools.
JNPSD at that point, had a racially integrated workforce as a result of
Plan 2000' s implementation. NQ 5156 at 9. Though not determinative,
of course, this acknowledgement provides important context. In 2017,
PCSSD and the intervenors stipulated that the post-detachment
PCSSD was unitary in staffing, and this Court so held.
NQ 5306 &
Intervenors push back on JNPSD' s first round of hiring with a
general point and instances. Their general point is results: JNPSD
ended up with a smaller overall percentage of non-white teachers
than PCSSD had at the same schools pre-detachment.
Exhibits NQ 3-4. Results are important, but precedent makes clear that
they're usually not determinative.
Little Rock School District v.
Arkansas, 664 F.3d 738, 747-48 (8th Cir. 2011).
Absent results that
reveal a sham process, or a good faith push that has nonetheless
completely failed, bottom-line numbers alone don't undermine a
district's efforts. Here, while the detached schools didn't end up with
as many non-white teachers and administrators as PCSSD had in
place, significant racial diversity resulted from a hiring process much
like the one PCSSD had been using for years, which the intervenors
had long approved. JNPSD Exhibits NQ 26-33.
The intervenors also
particular hiring decisions.
make several counter-points
For example, the dispute about who
would initially fill one of the JNPSD assistant superintendent slots.
The biracial interview committee recommended Dr. Janice Walker, a
PCSSD principal, while then-JNPSD-superintendent Wood favored
another top candidate, Bobby Lester Jr., an Arkansas Department of
Education official. Walker is black; Lester is white. He is the son of a
former PCSSD superintendent, Bobby Lester Sr., who served as
JNPSD superintendent after Arkansas created the new District. ThenPCSSD-superintendent Dr. Jerry Guess stood firm for Dr. Walker
based on a long-standing PCSSD practice: the biracial committee's
recommendation was "the" hire.
Intervenors Exhibit NQ 23.
Wood didn't budge either.
This impasse resulted in a continuing
vacancy, and ultimately a change in what became JNPSD's policy
about the hiring process for district-level administrators and staff:
three names, ranked, come forward from these JNPSD biracial hiring
JNPSD Exhibit 1 at 113 & Exhibit 87.
(More on that
variation in a moment.)
What about this specific result-does it, as the intervenors urge,
undermine JNPSD's good faith in hiring decisions? No. For his part,
Dr. Guess was simply staying in the traces, following the practice
PCSSD had developed over many years, part of the larger process that
had brought PCSSD very close at that point to agreed unitary status in
hiring. On the other side, Woods' s testimony convinced the Court: he
supported the person he believed was the best overall candidate; race
played no part in his decision. This was, it's clear, a logjam between
two strong leaders, not race discrimination. Dr. Walker now serves as
the founding principal of JNPSD' s new Lester Elementary (named for
And both current JNPSD assistant superintendents,
Gregory Hodges and Dr. Tiffany Bone, are black.
Next, the intervenors emphasize that the first hiring process for
department heads-transportation, maintenance, child nutrition, and
the like - resulted in a mostly white group. The Court was convinced
by the JNPSD testimony that experience drove these decisions. After
standing up, this new District had to start sprinting toward the fall
2016 opening. The PCSSD-crafted hiring process was followed. Dr.
curriculum, instruction, and desegregation, was involved in all the
details. The Court credits his testimony that none of JNPSD' s hiring
decisions about the first department heads was race-based.
The intervenors also criticize Dr. Duffie's hiring of Ms. Amy
Arnone (a white applicant) instead of Ms. Tammy Knowlton (a black
applicant) to be his executive assistant. There was, however, a racially
diverse applicant pool; finalists of both races were interviewed; and
JNPSD also hired Knowlton to be the human resources coordinator.
Arnone had more local community connections, while Knowlton had
more experience in personnel. Both positions are in the same salary
range. Both, moreover, are important District jobs.
Last, the intervenors emphasize and criticize JNPSD' s "threefinalists" procedure for district-level administrators and department
heads, and the "preferred candidate plus an alternate" for teachers
and other staff-changes from PCSSD's drill. JNPSD Exhibit 1 at 113
& Exhibit 87.
This policy apparently grew out of the assistant
superintendent conflict. And the intervenors say it's a retreat from
Plan 2000's biracial interview committees and the bolded check mark
by the candidate recommended by one of those committees for a
vacant slot. Both parties have hold of some truth here: Plan 2000
doesn't require either the biracial committees or following one of
those committee's recommendation;
both practices are embedded,
though, in PCSSD' s culture from decades of efforts to achieve unitary
status in hiring.
E.g., Humphries v. Pulaski County Special School
District, 580 F.3d 688, 696 (8th Cir. 2009). The whole truth is that
JNPSD's change is marginal, not nuclear. JNPSD's adoption of the
general framework built over the years by PCSSD is salutary.
shows good faith in complying with Plan 2000.
ultimate authority in the superintendent for selecting those who run
each school, and the central staff, is also reasonable in a smaller
district such as JNPSD. Having an alternate finalist in school-level
hires is likewise reasonable. And these changes in the PCSSD-crafted
Plan 2000 custom do not break faith with what the Plan mandates.
With these general points addressed, the Court turns to
Plan 2000 § L's particulars.
Recruiting Racially Diverse Applicants for Administrator
Vacancies. JNPSD has done so. The District's hiring policy echoes
§ L(2). It advertises on the internet and in other media. As Dr. Owoh
did, Dr. Bone and Ms. Knowlton screen applicant pools;
assistant superintendent can and has directed further recruitment to
achieve a diverse pool for a particular position. Biracial interview
committees meet and evaluate leading candidates.
objectivity, they use standardized evaluation forms, questions, and
scoring. All this is a carryover from PCSSD. In a further effort to
clarify and confirm the process, Dr. Bone recently prepared a
comprehensive and useful framework document. JNPSD Exhibit 8 7.
It covers the hiring guidelines for district-level administrators and
staff, as well as teachers. The document was late breaking, getting in
the intervenors' hands only at trial. That could raise an eyebrow- but
for the fact that the document puts into words the practices long
followed at PCSSD (with the JNPSD three-finalists exception) and
followed at JNPSD since it began.
And for the reasons already
explained, JNPSD' s decision to give a bit more say to the
superintendent on who is offered the job is not only a reasonable
variation; it does not violate Plan 2000 § L(l)' s mandate.
Though the results of all this don't answer the substantialcompliance question, they're illuminating. JNPSD's superintendent is
white; both assistant superintendents are black; most of the dozen or
so non-academic department heads (the superintendent's cabinet) are
white; and the twenty principals and assistant principals are of both
races. These circumstances are a long way from the days of whiteonly school leaders.
In sum, JNPSD is unitary in recruiting a diverse applicant pool
for vacant administrative positions.
Recruiting Racially Diverse Applicants for Teacher Vacancies.
Here, too, JNPSD has complied in good faith with its Plan 2000
obligations. The District spreads the word about vacancies far and
wide. It attends job fairs at colleges, including predominantly nonwhite institutions. The intervenors faulted JNPSD for not focusing on
UALR. That's a small gap, which doesn't undermine the District's
substantial compliance. And the Court is confident that JNPSD got
the message about UALR at the February trial. The intervenors point
out that there's no line item in the budget for minority recruitment.
But Dr. Duffie testified that he's placed no limit on what Dr. Bone (or
her predecessor, Dr. Owoh) could spend. And there was no evidence
that budget concerns have limited spending on advertising, travel, or
other recruiting efforts.
The JNPSD witnesses spoke as one: there is no upper limit on
the number of black teachers. The Court believes this testimony. The
Court sees no evidence of any policy, practice, or custom aimed at
limiting the proportion of black teachers. The Court sees no JNPSD
policy, practice, or custom that effectively does so, either.
Dr. Owoh, Dr. Bone, and those working with them have been
vigilant about the hiring process.
The applicant pools have been
diverse. As JNPSD pointed out, it re-posted three academic positions
(gifted and talented teacher, math coordinator, and special education
director), as well as a building nurse slot, to get more diverse
applicant pools. The biracial committee process has been followed.
The intervenors were critical of JNPSD' s documentation about
recruiting and applicant pools. The Court concludes, though, that the
District's records were adequate. Little Rock School District v. Arkansas,
664 F.3d at 747. Documents are helpful.
No doubt they facilitate
intervenors' monitoring. But they're a means, not an end. The Court
credits the testimony of Dr. Owoh, Ms. Williams, Dr. Bone, and
Ms. Knowlton about their recruiting and hiring work. It's clear, also,
that JNPSD is monitoring the demographics of its teachers and staff
and, where needed, promoting diversity in applicant pools.
Knowlton specifically testified about nudging principals during the
hiring process. This is precisely the kind of awareness, and resulting
consideration of race, that § L requires. There are no quotas and there
can be none. But, as the Humprhies case teaches, race has been in the
mix- as part of Plan 2000' s purpose to remedy the effects of past
discrimination. JNPSD has complied in good faith with its obligation
to recruit racially diverse pools of applicants for vacant teacher
positions. No more Court supervision is required in that area.
Programs, Incentives, and Assignments. Section L(3) requires
JNPSD to do three things: continue implementing programs, policies,
and procedures to increase the number of black teachers in early
childhood education, primary grades, and core secondary areas; offer
incentives for black teachers to get certified in those areas; and assign
those teachers to the schools where they' re most needed. The first
obligation is, the Court concludes, primarily about recruiting and
maintaining an inclusive hiring process.
The Court has already
explained why JNPSD has done both and has committed to
continuing efforts in both areas.
E.g., JNPSD Exhibit 87 at 2. The
District is unitary on this obligation.
The same is true for assigning teachers in these areas. In the first
round of hiring, as Williams testified, JNPSD sought at least one black
teacher in each primary grade and secondary core area at each school.
The District continues to monitor those assignments and prompt
principals as needed. JNPSD Exhibit 25. Knowlton' s testimony on this
point was unequivocal. This obligation shades into avoiding schools
that are identifiable by teachers' races.
JNPSD has substantially
complied in good faith with its assignment obligations.
Where the District has fallen short is on incentives.
testimony from Ms. Williams, Dr. Owoh, Dr. Bone, and Ms. Knowlton
established the challenges of recruiting qualified black applicants in
these areas and retaining them.
Adopting a front-loaded salary
schedule was a good step. JNPSD's tuition-reimbursement program
for current teachers, which started in 2016-2017, is another
taken advantage of it.
Court doesn't know.
No black JNSPD teacher, though, has
Four non-black teachers have.
But the Court is confident that the District
(working through Dr. Duffie, Dr. Bone, Ms. Knowlton, and others) can
answer the question and adjust the program to increase minority
participation. As best the Court can tell, no other incentives to get and
keep black teachers in pre-K, primary, and secondary core areas are in
place. To become unitary on this last aspect of staffing, JNPSD must
fill this gap. Something like PCSSD's hiring-incentives fund (adjusted
down, of course, to account for JNPSD' s more modest resources) is
one possibility. When you read the word "incentives," money comes
to mind. But, in the Court's experience, those who give their lives to
teaching our children are motivated by many things other than
money. The Court encourages JNPSD to investigate, experiment with
creative alternatives, and document what works and what doesn't.
These kinds of efforts will demonstrate good faith in substantially
complying with the incentive slice of JNPSD' s § L(3) obligations. The
District will remain under Court supervision solely on this part of
§L(3); it is unitary on all the other parts. Based on the good faith
JNPSD has shown so far in staffing, the Court anticipates unitary
status on this narrow (but important) part of § L(3) within a year or
substantially complied with its § L(4) obligation to avoid making its
schools identifiable based on the race of administrators, teachers, and
other staff. The District has eight schools: the high school, the middle
school, five elementary schools, and the pre-K center. All but one are
not racially identifiable: the adults who work in the classrooms, the
front offices, and elsewhere in each of these facilities are black and
JNPSD Exhibits 26-44.
The exception is the Adkins pre-K
center. The center's only administrator is white. JNPSD Exhibit 35.
There are eleven teachers there. In the 2017-2018 school year, all nine
certified teachers were white. There were two black paraprofessionals
who served as lead teachers. JNPSD Exhibit 25. That's a short-term
The Court credits the testimony of assistant superintendent
Hodges on this point: JNPSD recognizes that more black teachers are
needed at Adkins and is actively seeking them.
Dr. Duffie also
acknowledged that this school's staff makes it racially identifiable and
pledged to change that circumstance. The Court emphasizes that
JNPSD must continue to address Adkins, and implement a long-term
fix, sooner rather than later. But the law requires substantial goodfaith
Notwithstanding Adkins, JNPSD' s district-wide allocation of teachers
and other professional staff satisfies§ L(4).
Motion, NQ 5328, partly granted and partly denied. JNPSD is
unitary, and is released from Court supervision on all of Plan 2000
§ L's staffing obligations, except on § L(3) incentives. JNPSD will be
unitary on Plan 2000 § H's facilities obligations if it implements its
2018 master facilities plan as modified by this Order.
released from supervision on facilities except for its obligation to file a
progress report by 1 July 2019, and each year thereafter, until it
completes its facilities plan. The Court retains jurisdiction, of course,
to ensure that the District follows through.
D.P. Marshall Jr.
United States District Judge
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