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

Filing 5730

MEMORANDUM OPINION AND ORDER denying 5610 Motion to allocate the burden of proof, denying as moot 5724 Motion to strike, and granting 5686 JNPSD's motion for unitary status. With the exception of completing its 2018 master facilities plan as modified, JNPSD is unitary. 5621 Motion for unitary status by PCSSD partly granted and partly denied. With the exception of truing-up the Mills High School/Robinson Middle School problem, PCSSD is unitary. Intervenors must provide their support ing records to the other parties by 6/18/2021. Motion for fees (either unopposed or opposed) due by 7/30/2021. With the exception of the noted facilities issues, and the fee issues, which are collateral, this Court's jurisdiction over the Pulaski County Special School District and the Jacksonville/North Pulaski School District is at an end. Signed by Chief Judge D. P. Marshall Jr. on 5/6/2021. (jak)

Case 4:82-cv-00866-DPM Document 5730 Filed 05/06/21 Page 1 of 68

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

PLAINTIFFS

No. 4:82-cv-866-DPM
PULASKI COUNTY SPECIAL SCHOOL
DISTRICT, JACKSONVILLF/NORTH
PULASKI SCHOOL DISTRICT, et al.
EMILY McCLENDON, TAMARA EACKLES,
VALERIE STALLINGS, TIFFANY ELLIS,
and LINDA MORGAN

DEFENDANTS

INTERVENORS

MEMORANDUM OPINION and ORDER

Is it time? Yes. With the exception of some facilities issues, the
Pulaski County Special School District has substantially complied in
good faith with Plan 2000. Subject to the ongoing implementation of
its 2018 master facilities plan as previously modified by the Court, the
Jacksonville/North Pulaski School District has also substantially
complied in good faith with Plan 2000. It is therefore time for both
Districts to continue their important and challenging work of
educating all students without oversight from this Court, except as
specified on facilities.
Background.

It has been a decade since this Court held a

compliance trial in this case. Doc. 4507, 2011 WL 1935332, affirmed in

part and reversed in part, LRSD v. Arkansas, 664 F.3d 738 (8th Cir. 2011).

Case 4:82-cv-00866-DPM Document 5730 Filed 05/06/21 Page 2 of 68

The Court therefore convened a three-week bench trial in July 2020 on
the four areas in which PCSSD remains under supervision. Fifteen
witnesses testified, some several times on various areas, and twohundred fifty-five exhibits were received. In October 2020, the Court
held a two-week trial on JNPSD issues. There were twelve witnesses
and two-hundred thirty-five exhibits. Tours of many school facilities
in both districts were also informative. The Court has measured the
witnesses' credibility in reaching its factual conclusions. (The Court
hasn't considered PCSSD's post-trial special status report, Doc. 5723,
in deciding the unitary status issues. Intervenors' motion to strike it
will therefore be denied as moot.)
Much has happened in the decade since my Brother Miller
presided over the last trial.

There was a settlement about state

desegregation funding. With the Court's approval, PCSSD, Arkansas,
the Little Rock School District, and the North Little Rock School
District resolved that branch of the case. Doc. 4980 & 5063. Across
several years, state funding was phased out. This was a substantial
change because each of the central Arkansas districts was receiving
millions of dollars each year pursuant to the 1990 settlement
agreement. The deal also opened the possibility of creating a new
district for Jacksonville and north Pulaski County. The affected voters
agreed. In due course, JNPSD was detached from PCSSD. This was a
big lift by many hands. There was some contention, too.
-2-

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Soon after the settlement on state funding, and before the JNPSD
detachment, Arkansas took over PCSSD because of that District's
long-running fiscal problems. The State appointed Dr. Jerry Guess as
superintendent.

And the Director of the Arkansas Department of

Education acted as PCSSD's school board. ARK. CODE ANN. § 6-201909(a).

The Joshua Intervenors, representing the class of black

children and their parents, and PCSSD also embarked on what one of
the lawyers has aptly called a slow-motion settlement.

Between

January 2014 and June 2017, the Court approved stipulations that
PCSSD was unitary in various areas governed by Plan 2000:
• student assignment, Doc. 4986;
• talented and gifted, advanced placement, and honors
programs, Doc. 4986;
• scholarships, Doc. 5009;
• special education, Doc. 5088; and
• staffing, Doc. 5310.
In 2014, the Court approved a modification to Plan 2000 Section M
about student achievement.

This modification launched the Dr.

Charles W. Donaldson Scholarship Academy.

Doc. 5018.

The

Donaldson Academy figures in the current academic achievement
issues. In 2015, the Court also approved a supplement to Plan 2000
about PCSSD facilities. Doc. 5084 & 5091. That supplement is a root of
a current facilities dispute.
-3-

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At the end of 2016, Arkansas returned PCSSD to a newly elected
school board.

The following year Dr. Guess stepped down as

superintendent. The Court doesn't know the particulars, but there's a
reasonable inference some tension existed between him and the new
PCSSD board.
By late 2017, it became clear that the slow-motion settlement had
stopped.

Trials were needed to evaluate the Districts' Plan

compliance in the areas remaining under Court supervision. By that
point, too, JNPSD had stood up.

The new district had inherited

PCSSD' s Plan 2000 obligations. Doc. 5088. JNPSD was included in all
the parties' stipulations about partial unitary status except for the one
about staffing. The Court therefore started with a February 2018 trial
about JNPSD' s compliance in staffing and facilities. Thereafter, the
Court declared the new district unitary on staffing, except for a slice
about incentives in minority recruiting, and unitary in facilities
contingent on JNPSD' s completion of its 2018 master plan as
modified. Doc. 5445. No appeal was taken. JNPSD has provided the
Court annual reports about its building program. There are some
lingering questions about the amount of available State partnership
funding. To its credit, JNPSD has accelerated its already ambitious
building schedule to maximize Arkansas's contributions. The Court
has toured many of these facilities. JNPSD' s efforts here continue to
be nothing short of extraordinary.
-4-

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The Intervenors have been on the scene through all this. Because
there were now two Districts, and Lorene Joshua had passed away,
the Court requested nominations for new class representatives.
Without objection, Emily McClendon, Tamara Eackles, and Valerie
Stallings were appointed to represent the PCSSD class. In its trial
brief, PCSSD now makes a passing challenge to these representatives.
After some wrangling, Tiffany Ellis and Linda Morgan were
appointed to represent the JNPSD class. John W. Walker, who had
valiantly led the team of lawyers for the intervenors for more than
three decades, passed away in October of 2019. M. Samuel Jones Ill,
who had matched Walker step for step as PCSSD's lawyer since the
case began in 1982, shifted to an advisory role. All the members of the
current legal teams, some veterans and some new, have done
exemplary work.
PCSSD remains under this Court's supervision in four areas:
discipline, facilities, student achievement, and monitoring.

JNPSD

remains under supervision in those areas, too, with the caveat on
facilities - the Court's role is limited to ensuring implementation of
the District's master plan. The Court looks forward to future annual
reports of continued progress. Doc. 5445 at 7. Though mostly unitary
on staffing, JNPSD is also under supervision on minority-hiring
incentives, Plan 2000 Section L(3).

All this ground was covered

during the July 2020 and October 2020 trials.
-5-

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Preliminary Issues. There are five important general points.

First, the deep question is whether the Districts have complied in
good faith with Plan 2000, eliminating the traces of past
discrimination insofar as practicable. Freeman v. Pitts, 503 U.S. 467,
492 (1992);

LRSD v. Arkansas, 664 F.3d at 744. The shorthand is

substantial compliance. A careful assessment of the facts is required.

Freeman, 503 U.S. at 474. PCSSD proposed Plan 2000; Intervenors did
not oppose its substance; and this Court adopted it as a consent
decree. Doc. 3309, 3337 & 3347. As Judge Richard S. Arnold put it,
Plan 2000 is the "particularization of federal law applicable to these
parties." Knight v. PCSSD, 112 F.3d 953, 955 (8th Cir. 1997). It is a
contract that, with this Court's imprimatur, became an Order.

In

procedural terms, the Districts seek relief from this Court's Order
based on changed circumstances pursuant to Federal Rule of Civil
Procedure 60(b)(5). This Court sits to ensure that the United States
Constitution and other federal law is enforced in full measure for
every person. In institutional-reform cases, such as this one, the Court
must also be mindful that our Constitution creates a compound
republic, vesting substantial authority in states and their arms,
including local school districts. Freeman, 503 U.S. at 490; Horne v.

Flores, 557 U.S. 433, 447-50 (2009). Though it is a relative term, as this
case's almost four-decade history shows, a consent decree like Plan

-6-

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2000 is "a temporary measure[.]" LRSD v. Arkansas, 664 F.3d at 745
(quotation omitted).

Second, who must prove substantial compliance? The parties
agree that the Districts have the burden on facilities and staffing.
Speaking through Judge J. Smith Henley, this Court held long ago in
the Zinnamon case, a predecessor to this one, that PCSSD had violated
the Constitution in those areas. Zinnamon v. Board of Education of the

Pulaski County Special School District, E.D. Ark. No. LR-68-C-154,
Memorandum Opinions (17 August 1970 & 22 July 1971) & Decree
(4 June 1973); see also Doc. 5664. Not so, the Districts say, on the other
remaining areas- discipline, student achievement, and monitoring.
According to PCSSD and JNPSD, parts of Plan 2000 were simply
matters of contract, on which the Intervenors have the burden of
showing a breach, as in any contract case. The Districts draw their
argument from many cases, in particular Horne, Jenkins v. Missouri,
216 F.3d 720 (8th Cir. 2000) (en bane), and Jackson v. Los Lunas

Community Program, 880 F.3d 1176 (10th Cir. 2018).
The Intervenors disagree, contending that the Districts have the
evidentiary burden in all Plan 2000 areas. They point out that the
Districts' burden has been an accepted premise of prior litigation.

E.g., Doc. 4160 at 5-9; LRSD v. Arkansas, 664 F.3d at 744-45. In the
run-up to Plan 2000, PCSSD argued for a split in the burden of proof.

Doc. 3253 at 29-30. My Sister Wright rejected this position, noting that
-7-

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the District had bound itself to the full desegregation plan. Doc. 3304

at 6 & 29.

Intervenors compare LRSD' s plan, which specifically

allocated the burden to the party challenging that District's substantial
compliance. LRSD v. PCSSD, 237 F. Supp. 2d 988, 1033-34 (E.D. Ark.
2002). Plan 2000 does not make this allocation. Intervenors contend,
finally, that the discriminatory effects in discipline and student
achievement, and the indifference shown by lack of monitoring, flow
naturally and directly from the Districts' past segregation. The whole
Plan was therefore needed to remedy the constitutional violations.
While the Districts' new argument has some force, the Court is
not persuaded.

Horne did not overrule Rufo v. Inmates of Suffolk

County Jail, 502 U.S. 367 (1992), Frew v. Hawkins, 540 U.S. 431 (2004),
and like cases. The starting point is that Plan 2000 is a consent decree,
not a court-imposed remedy. Applying Rule 60(b)(5), the Supreme
Court held in Rufo that "a party seeking modification of a consent
decree bears the burden of establishing that a significant change in
circumstances warrants revision of the decree." 502 U.S. at 383. Horne
recognized and applied this legal principle.

557 U.S. at 447.

The

Horne Court rightly added cautions: the institutional-reform context
requires attention to the incentives that may have prompted the
consent decree, as well as to changes over time in local public officials.
557 U.S. at 448-50.

A flexible approach to the Rule 60 inquiry,

prompted by a good dose of horse sense, 1s necessary.

-8-

But, the

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burden of proof remains with the party seeking to change the Court's
consent decree.

The significant change advanced in this case is

substantial compliance.

"Because this case has been settled, the

settlement agreement becomes, in a sense, a particularization of
federal law applicable to these parties." Knight, 112 F.3d at 955. This
Court did not hold the Districts "over their objection, to undertake a
course of conduct not tailored to curing a constitutional violation that
has been adjudicated." Rufo, 502 U.S. at 389. The Court is holding the
Districts to their word. To speak in terms of the Districts' contract-law
analogy, if they were seeking a declaratory judgment that they had
fulfilled their contractual obligations, the Districts would have the
burden of proof. The Intervenors did not seek relief, alleging some
breach.

They are defending (with non-performance arguments)

against the Districts' efforts to change the status quo. The Court has
found no solid precedent for the split evidentiary burden the Districts
now propose. And the Court does not see any lurking jurisdictional
issue. The Districts' contrary argument seems to be a way to inoculate
against a possible forfeiture finding. But under Plan 2000 § 0, the
Court retained jurisdiction to enforce the Plan.

Doc. 3337 & 3347;

Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 380-82
(1994).
The Districts also say that the Eighth Circuit's 1985 interdistrict
remedy created a clean slate for PCSSD.
-9-

LRSD v. PCSSD No. 1,

Case 4:82-cv-00866-DPM Document 5730 Filed 05/06/21 Page 10 of 68

778 F.2d 404, 434-36 (8th Cir. 1985) (en bane); see also LRSD v. PCSSD
No. 1, 805 F.2d 815, 816 (8th Cir. 1986) (per curiam). They argue that

the Intervenors must therefore identify constitutional violations since
then to justify continued court supervision. Doc. 5611 at 4-6 & 11.
This argument ignores the line from the 1985 interdistrict remedy,
through the Districts' desegregation plans, and to Plan 2000. LRSD v.

PCSSD, 237 F. Supp. 2d at 1002; Doc. 4507 at 11-13, 2011 WL 1935332
at *6-*7.

When the Court of Appeals affirmed the finding of

interdistrict constitutional violations and remanded the case to
implement the remedy, the parties chose to settle "by undertaking to
do more than the Constitution itself require[d] ... but also more than
what a court would have ordered absent the settlement."
502 U.S. at 389.

Rufo,

The parties thus tied their chosen remedy-now

embodied in Plan 2000- to the underlying constitutional violations.
Third, during the testimony about various District statistical

reports, Intervenors developed proof about the fact that the "nonblack" or white category included students other than white students.
PCSSD has a growing Hispanic population. According to PCSSD, a
year or two before his death Mr. Walker raised this issue with the
District.

The (disputed) point is that the non-black numbers may

mask greater black/white disparities.

In argument, Intervenors

pressed that the correct comparison on discipline and student
achievement issues was between black students and white students.
-10-

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PCSSD and JNPSD counter that taking this view of the record is both
novel and unfair because of the parties' long-settled way of reporting
and evaluating data in this case.
The Districts have the better of this dispute. To date, the Court's
evaluation of the data has been in terms of black/ non-black. E.g.,

LRSD v. PCSSD No. 1, 659 F. Supp. 363, 371 (E.D. Ark. 1987). The
documents embody this settled understanding. E.g., PCSSD Exh. 193
(2008-2009 monitoring and compliance report). Every witness who
testified about this issue said that black/ non-black has always been
the rubric.

Those witnesses included Dr. Janice Warren and Dr.

Yolaundra Williams, who have been involved with PCSSD' s
desegregation efforts for many years, and Margie Powell (the Court's
expert) who worked in the Office of Desegregation Monitoring and
was the monitor when that office closed in 2014. When the category
"white" has been used, it has always included all non-black students.
The Court need not address the parties' contending arguments about
the rubric's merits. Given the case history, and the reliance of the
parties and the Court on the black/ non-black rubric, Intervenors are
estopped from arguing at this late point that a different comparison is
better.
Fourth, good faith. This is an essential condition of relief from

the consent decree. The issue is whether PCSSD and JNPSD have
"demonstrated, to the public and to the parents and students of the
-11-

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once disfavored race, [their] good-faith commitment to the whole of
the court's decree and to those provisions of the law and the
Constitution that were the predicate for judicial intervention in the
first instance." LRSD v. Arkansas, 664 F.3d at 745, quoting Freeman, 503
U.S. at 491. PCSSD's lack of good faith was one of the main themes of
Judge Miller's 2011 Order and the Court of Appeals' affirming
decision- implementation of Plan 2000 was an afterthought. This has
changed.
The change began with Dr. Guess. It was manifested in the
various stipulations, which recognized PCSSD' s progress in several
Plan 2000 areas.

The stipulations about student assignment and

staffing were particularly important because these were among the
deep roots of segregation. The JNPSD detachment likewise showed
PCSSD' s, and the State's, good intentions. PCSSD' s facilities needs
were so many that Plan 2000' s facilities obligations were out of reach.
The detachment opened the way for substantial state partnership
funding for JNPSD buildings. The parties' 1990 settlement agreement,
which covered all three central Arkansas Districts, forbade alteration
of District boundaries. PCSSD' s willing participation in the 2013 deal,
and the resulting detachment of JNPSD, demonstrated good faith.
Turning to the last few years, the Court has observed the
attitudes and actions of the PCSSD and JNPSD leaders during three
trials, many status conferences, and several all-day school tours.
-12-

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These administrators answer to their respective school boards. They
reflect those boards' views and commitments. The administrators are
diverse in background, training, gender, and race. These are the key
leaders that were in place during the 2020 trials: At PCSSD, the team
was Dr. Charles McNulty (superintendent), Dr. Janice Warren
(assistant superintendent of pupil services), Alesia Smith (deputy
superintendent for learning services), Dr. Yolaundra Williams
(director of special programs), Dr. Sherman Whitfield (director of
pupil services), Dr. John Mccraney (coordinator of equity initiatives),
and Curtis Johnson (executive director of operations). At JNPSD, the
team was Dr. Bryan Duffie (superintendent), Dr. Tiffany Bone
(assistant superintendent for secondary curriculum, student services,
and desegregation), Gregory Hodges (assistant superintendent for
elementary instruction and education), Tammy Knowlton (director of
human resources), and Jacob Smith (director of federal programs).
Having spent time listening to and observing all these educators, the
Court has no doubt whatsoever about their good-faith commitment to
the whole of Plan 2000, including the Ross plan goals. And this is not
just a central-office ethos. As exemplified by the testimony about
what is happening at the building level in PCSSD and by two JNPSD
principals who testified-Janice Walker (Lester Elementary) and
Shana Loring (Taylor Elementary)-the Districts' commitment to
educating all students fairly and faithfully is deep.

-13-

With one

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exception discussed below, PCSSD and JNPSD have demonstrated to
the public, the black students and their parents, and this Court their
commitment to our Constitution's promise of equal treatment and to
Plan 2000' s remedies for unequal treatment in the past.

Freeman,

503 U.S. at 491.

Fifth, to secure release from Court supervision, the Districts must
also have eliminated the vestiges of segregation to the extent
practicable. LRSD v. Arkansas, 664 F.3d at 749. The qualifying phrase
is important. "[B]ecause racism still remains a most regrettable part of
the nation's social fabric, no amount of federal supervision can

eliminate racial discrimination."

LRSD v. PCSSD, 237 F. Supp. 2d

at 1029 (emphasis original). Therefore, in a school case like this one,
the law's inquiry has a narrower focus. "The vestiges of segregation
that are the concern of the law in a school case may be subtle and
intangible but nonetheless they must be so real that they have a causal
link to the de jure violation being remedied." Freeman, 503 U.S. at 496.
Here, half a century separates Judge Henley's rulings in the Zinnamon
case and the Districts' current operations.

Much has changed,

especially in the last decade. The turning of the years makes it less
likely that disparities are "a vestige of the prior de jure system." Ibid.
No expert testimony was offered by the Districts or the Intervenors on
what causal link exists between the constitutional violations being
remedied and the undisputed disparities that remain in student
-14-

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performance and discipline.
(8th Cir. 1997).

Compare Jenkins, 122 F.3d 588, 598-99

The Court must therefore look primarily to the

Districts' good faith, which informs the vestiges issue indirectly: "The
causal link between current conditions and the prior violation is even
more attenuated if the school district has demonstrated its good
faith." Freeman, 503 U.S. at 496. As explained above, and as will be
described in detail below, PCSSD and JNPSD have demonstrated their
good faith. Last, the Court must consider whether judicial oversight is
needed to ensure continued progress. Freeman, 503 U.S. at 491-92.
The superintendents from both PCSSD and JNPSD said that the many
efforts to educate all students are entrenched. This firm testimony
was powerful and persuasive. Court supervision is not necessary to
make sure that these Districts press on. And continued oversight is
unlikely to yield better results than what the Districts will achieve on
their own. For all these reasons, the Court concludes that, with the
carve outs on facilities issues, PCSSD and JNPSD have - to the extent
practicable - eliminated the vestiges of PCSSD' s segregated past.
Having addressed these five general issues, the Court turns to
each district and Plan 2000' s specifics.

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PCSSD. As noted, the District remains under supervision in

four areas: discipline, facilities, student achievement, and monitoring.

Discipline.,. Plan 2000' s provision is in the margin. Judge Miller
captured the situation at PCSSD in this area as of 2011: "If one word
could describe the hearing evidence, it would be sad." Doc. 4507 at 59,

*

F.

Discipline

(1) The PCSSD will continue to gather data which allows a full
assessment of its success in achieving its objective of eliminating racial
disparities in the imposition of school discipline. As a foundation for
this effort, disciplinary records shall be kept on each student
concerning the nature of any discipline imposed (suspension,
Saturday school, expulsion, etc.); the teacher and staff member
involved; and the school, race, and sex of the student.
(2) Not later than 45 days after the court's approval of this
Plan, the Assistant Superintendent for Desegregation shall submit to
the Joshua Intervenors, for comment, proposed criteria for identifying,
from the data collected: (i) teachers and other staff members who are
experiencing problems which require attention; (ii) schools which
have atypically high discipline rates; and (iii) schools which have
atypically high racial disparities in discipline. The Joshua Intervenors
shall have 21 days to provide comment on these proposed criteria.
The PCSSD shall then complete the criteria promptly.
(3) The Assistant Superintendent for Desegregation and the
Assistant Superintendent for Pupil Personnel shall thereafter provide
for and participate in specific efforts to work with teachers and other
staff members and the personnel of schools, identified pursuant to the
criteria set forth in paragraph 2, to promote achievement of the goal of
eliminating racial disparities in school discipline. The Assistant
Superintendent for Desegregation shall maintain records showing the
specific steps undertaken.
-16-

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(4) PCSSD shall conduct a comprehensive study of the
disciplining of African-American students, particularly male students,
at the secondary level. The participants (a minimum of twelve (12)),
one-half designated by the Joshua Intervenors and one-half by PCSSD
and the PACT and PASS, shall consider the causes for the high rates
of discipline for African-American students and possible remedies.
The panel shall, among other things: review discipline records to
secure an understanding of the circumstances in which AfricanAmerican students are disciplined; interview and/ or survey AfricanAmerican students regarding their experiences in the system
generally and in the discipline process; and consider the possibility of
a relationship between unmet academic needs and discipline rates.
The written study shall be completed not later than 150 days after
court approval of this Plan and shall provide suggestions for
prevention and intervention measures.
(5) The PCSSD shall develop a specific initiative to reduce the
rates of discipline in the PCSSD shown in ODM' s report dated
March 18, 1998. This initiative shall be implemented not later than 150
days after the court's approval of this Plan.
(6) PCSSD shall adhere to the policies set forth in the
Handbook for Student Conduct and Discipline, as revised after
consultation with the Joshua Intervenors, PACT and PASS, to provide
that students are disciplined in a fair and equitable manner. The
Assistant Superintendent for Pupil Personnel shall be responsible for
determining the fairness of student disciplinary decisions. He will
delegate the student hearing function to a single hearing officer who
will consider the appeal brought by parents and the position of the
administrator making the recommendation and then make a decision
based upon equitable factors. An aggrieved student may appeal to
the Superintendent of Schools. The Superintendent may review the
matter or refer it to the school board for action. The committee
approach which utilizes school principals in the student appeal
process has been discontinued and will not be reinstituted.

-17 -

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2011 WL 1935332, at *29. Today, the Court needs more words than

one.

On discipline issues, PCSSD is committed, improved, and

imperfect.

The circumstances add up to substantial compliance.

Freeman, 503 U.S. at 491-92.
PCSSD was implementing three subparts of its discipline
obligations in 2011. It was collecting comprehensive data, identifying
discipline issues, and following handbook provisions about discipline.
Plan 2000 § F(l), (2) & (6).

All these efforts have continued. The

record overflows with reports about discipline numbers.

PCSSD

Exh. 90-98. As Dr. Whitfield and Dr. McCraney testified, the District

identifies teachers with large numbers of discipline referrals and
schools with high numbers in general. And PCSSD follows its current
handbook provisions that prescribe how students are disciplined,
including appeals. These matters are within Dr. Whitfield's portfolio,
and the Court credits his testimony. The Intervenors concentrated
their fire elsewhere.
Section F(3) requires PCSSD to make specific efforts to work
with high-discipline teachers and schools to eliminate racial
disparities in discipline. In 2011, PCSSD had discipline plans at both
the school and district levels. But those plans weren't tailored toward
reducing disparities in discipline; and they didn't focus on teachers
and staff members with high discipline rates. Further, none of the
District's initiatives had been in place long enough to support a

-18-

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finding of good faith. Judge Miller found the District's efforts on this
front inadequate; and the Court of Appeals affirmed. Doc. 4507 at 6466, 2011 WL 1935332, at *32-33; LRSD v. Arkansas, 664 F.3d at 751.
The recent facts are different. Each school's improvement plan
has a discipline section. PCSSD Exh. 12. Those plans now focus on
reducing racial disparities.

E.g., PCSSD Exh. 12 at 6349-76. Each

school has a discipline management plan with objectives based on that
school's discipline data. PCSSD Exh. 131. Most importantly, schools
with a problem are addressed. For example, as Dr. Whitfield testified,
Mills High School was "off the charts" on discipline issues five years
ago; a discipline intervention team was deployed; and the situation
improved. The District also identifies and works with teachers who
make lots of discipline referrals. Between 2012 and 2018, the District
contracted with Dr. Mack Hines to work with those teachers. PCSSD

Exh. 100-112.

Dr. Robert Clowers was also involved in training

cohorts of teachers with the same challenge. PCSSD Exh. 100. For
these reasons, and those explained below, the Court credits
Dr. McCraney' s testimony that PCSSD' s response to the discipline
disparity has been woven into the District's fabric. PCSSD is meeting
its§ F(3) obligations.
Section F(4) requires PCSSD to undertake a comprehensive and
immediate study of how black students, particularly young men, are
disciplined. Plan 2000 speaks here with specificity about the twelve-19-

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member panel that would complete the study, the ground to be
covered, and the goal: identifying the causes of high discipline rates
for black students and possible remedies. PCSSD didn't do this study.
In the mid-2000s, a former district administrator did a draft of a study
in this area. But it was devoid of suggested remedies, and Judge
Miller found it insufficient.

Doc. 4507 at 66-67, 2011 WL 1935332,

at *33. The Court of Appeals affirmed. LRSD v. Arkansas, 664 F.3d
at 751.
In the decade since, PCSSD has not conducted the kind of
comprehensive study envisioned by § F(4). Of course the original
deadline had long passed, but the calendar is not determinative, and
no solid explanation was offered for why this study was never done.
There were studies that touched on discipline.

In 2013, From the

Heart International Educational Services did focus groups at Sylvan
Hills High School and Jacksonville High School.

Dr. Whitfield

testified that these schools had the highest rates of discipline in the
District at that time.

These focus groups involved black males.

PCSSD Exh. 119 & 121. From the Heart also did at least one districtwide study in 2014-2015.

PCSSD Exh. 123.

The University of

Memphis took a District-wide look every school year between 2011
and 2018 in a Formative Evaluation Process for School Improvement.

E.g., PCSSD Exh. 120, 126 & 127. PCSSD argues that all these studies
complied with the spirit if not the letter of § F(4). These studies,
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though, were about what was referred to at trial as the "climate" of
the schools. They were primarily about academic achievement and
impediments to it.

The Court was certainly persuaded by the

testimony that discipline rates and academic achievement are
inversely related- students getting into trouble of one sort or another
aren't learning as much as others. But, PCSSD' s important work with
From the Heart and the University of Memphis does not tum§ F(4)'s
square corner. This fact weighs against the District.
Plan 2000 § F(5) required PCSSD to develop, within a few
months, a specific initiative to reduce the discipline rates documented
in 1998 by the Office of Desegregation Monitoring, Doc. 3134. ODM
had found that in most sanction categories, over-representation of
minority students hadn't improved: "Each year for the past six years,
more and more black students (especially males) have been
suspended or expelled from school, thus receiving less classroom
instruction." Doc. 3134 at 100. Black students continued to be
disciplined at rates that were disproportionate to their numbers in the
student population. The only area in which discipline had improved
was bus suspension. Ibid. Judge Miller noted that the District had
implemented various responding programs, but did so several years
late. This foot-dragging prevented a finding of compliance in 2011.
Doc. 4507 at 67-68, 2011 WL 1935332, at *34. The Court of Appeals

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affirmed on this issue, rejecting PCSSD' s argument that it was doing
well if graded on a national curve. LRSD v. Arkansas, 664 F.3d at 751.
In the years since the last trial, PCSSD has continued and refined
its initiatives to reduce the racial disparity in discipline. The Court's
expert (Margie Powell) summarized where things now stand in her
pretrial report.

"After years of perfunctory initiatives and poorly

designed behavior programs, district personnel have joined together
to develop a discipline system that is research[] based, student
centered, and that seems to be working." Doc. 5531 at 7. The proof at
trial confirmed Ms. Powell's conclusion.
The Court highlights these aspects of the District's efforts.
• PBIS. Positive Behavioral Interventions and Supports 1s

about preventing discipline problems rather than punishing them.
PCSSD Exh. 145-53. PBIS went district wide in 2019-2020. It began in

the Mills High School feeder schools (elementary and middle) in the

2014-2015 school year, succeeded, and was expanded. Every building
has a PBIS coach.

• RTI. Response to Intervention is a tiered approach to
academic and discipline issues. PCSSD Exh. 153. It has long been in
place at PCSSD. The Court was persuaded by Nickey Nichols' s strong
testimony about the District's increased fidelity to this program in
recent years. She helped create a manual, which includes guidelines

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for teachers and is available to all staff. PCSSD Exh. 144. Nichols
monitors compliance, and this program is getting good results.
• AVID. The Advancement Via Individual Determination

program is a new initiative. It is directly about achievement and
indirectly about discipline. PCSSD Exh. 13. The Court will discuss it
below in terms of the achievement-gap issues but mentions it here
because of the undoubted link between good behavior and academic
progress.
The Court also notes PCSSD' s ongoing development of a Teen
Court program, where peers mete out restorative justice.

This

program has not yet been launched, but it indicates that the District is
continuing to seek ways to close the discipline gap.
What are the results of PCSSD's efforts? Dr. Warren testified
that, based on her long experience in school administration, she looks
at five-year trends.
Exh. 209.

Her chart on suspensions is telling.

PCSSD

From the 2014-2015 school year to the 2018-2019 school

year, the disparity between black and non-black students decreased
from 42% to 26%. The District's various charts about discipline show
similar downward trends. PCSSD Exh. 203-08. Results are important,
but they aren't the full measure of substantial compliance. LRSD v.
Arkansas, 664 F.3d at 747-48; LRSD v. Armstrong, 359 F.3d 957, 965

(8th Cir. 2004).

It is a weighty fact that PCSSD is succeeding in

reducing the racial disparity in discipline.
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Every district witness

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recognized, however, that a gap still exists.

And every witness

recognized that this is unacceptable. The effort must continue. The
District has substantially complied with § F because PCSSD has, in the
main, done what Plan 2000 requires, its efforts have produced good
fruit, the District recognizes its obligation to continue those efforts,
and the network of programs (old, recent, and planned) are a durable
way of continuing to address the remaining racial disparity in
discipline.

Facilities.** "We find no clear error in the district court's factual
findings that PCSSD has devoted a disproportionate share of its

**

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
schools).
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facilities spending to predominantly white areas." LRSD v. Arkansas,
664 F.3d at 753. That was the situation in 2011. There had been no

good faith effort to substantially comply with Plan 2000' s facilities
requirements. Ibid. As indicated by the State takeover, PCSSD' s fiscal
problems were acute. Various studies, plans, and proposed millage
increases went nowhere.

The JNPSD detachment was part of the

recipe for achieving Plan 2000' s promise that "existing school facilities
are clean, safe, attractive[,] and equal." Plan 2000 § H(l). In 2014,
during the slow-motion-settlement period, PCSSD and Joshua
approached the Court with a proposed supplement to§ H. Doc. 5084.
A purpose of this supplement was to address PCSSD' s facilities needs
after the JNPSD detachment.

Plan 2000 § H(2) & (3) were

uncontroversial and satisfied. PCSSD had built a new Daisy Bates
Elementary and Maumelle Middle School;
predominantly black area had been closed;

no school in a
and the District had

notified Intervenors about plans for new schools or adding to existing
ones. Doc. 5554 at 3. The pressing issue was equalizing facilities as

(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.
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contemplated by Plan 2000 § H(l) and as informed by the Kahn Study.
Doc. 4507 at 73-78, 2011 WL 1935332, at* 37-39.

The parties' 2014 supplement supplanted that study and all
similar efforts. PCSSD pledged to seek a millage increase. If it passed,
Plan A would be implemented:

new high schools at Mills and

Robinson (circa $50 million each), conversions of the existing high
schools at Mills and Robinson to first-class middle schools (circa
$5 million each), and a modernization/ expansion of Sylvan Hills High

School (circa $50 million). The Mills projects were to have priority if
the Robinson work couldn't be done simultaneously. If the millage
failed, then Plan B would be implemented: a new Mills High School
(circa $50 million) and conversion of the existing Mills High School
into a middle school (circa $5 million). The Mills schools serve a
majority-black area. The Robinson schools serve a majority non-black
area. Plan B was silent about other facilities projects.
PCSSD bound itself irrevocably to Plan B. The supplement was
"intended to demonstrate PCSSD' s good faith in addressing and
remediating the unconstitutional disparities that exist as to its
facilities." Doc. 5084 at 1. The Intervenors "accept[ed] and agree[d]
that the PCSSD general plan commitments, and particularly its
specific irrevocable obligations pertaining to new and improved high
school and middle school facilities in the predominantly black
southeast quadrant of PCSSD, are, indeed, substantial evidence of

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PCSSD' s good faith in removing its constitutional deficiencies
regarding facilities." Doc. 5084 at 1-2. This Court applauded and
approved the parties' supplement to § H. Doc. 5091.
The proposed millage failed. True to its word, PCSSD moved
forward on Plan B. Implementation did not go well. In the beginning,
there were undercut problems at the agreed site. The Mills facilities
are in an area accurately called Granite Mountain.

Construction

slowed and costs increased. Meanwhile, PCSSD had decided to meet
needs at Robinson by razing most of the old middle school and
building a new one there. The needs were real. The decision was
sound in principle. But, through then-serving director of operations
Derek Scott, PCSSD favored the Robinson project and squeezed the
Mills projects. There were only so many dollars to go around at any
given time.

The plans for Mills High that Scott presented to the

PCSSD cabinet of District leaders were not followed. For example,
classroom size was reduced to the state minimum. Hallways shrunk
in width and three feet in height. Overall capacity was reduced from
seven hundred fifty students to seven hundred.
In August of 2017, Dr. Janice Warren discovered what had
happened. Dr. Guess having left for unrelated reasons, she was then
serving as interim superintendent. The new Mills High School and
the new Robinson Middle School were, by this point, substantially
complete. Scott resigned. Dr. Warren's understated testimony was
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powerful: "I gave him a little assistance." In another show of good
faith, PCSSD immediately alerted the Court and the Intervenors.
There were motions, hearings, and facility tours. The Court made
preliminary findings from the bench in September 2018 about
Robinson Middle' s superiority and various insufficiencies at Mills
High. Doc. 5565 at 13-25. The Court denied the Intervenors' request
for an independent facilities expert and instead directed PCSSD to get
busy with upgrades at Mills High School and report to the Court bimonthly.

PCSSD has faithfully done so.

Curtis Johnson, who

replaced Scott as director of operations, gave helpful and credible
testimony at trial about these efforts. The Court also toured Mills
High again during the 2020 trial.
Where do things stand?

PCSSD points to the dollars.

The

District has spent just north of $50 million on Mills High School and
more than $5.4 million on Mills Middle School. These figures include
various upgrades responding to the Court's preliminary ruling. The
District has spent slightly more than $43 million on Robinson Middle
School. PCSSD Exh. 156. PCSSD argues hard that it has kept its word,
crossed both dollar thresholds at Mills, and thus satisfied its modified
§ H obligations. Intervenors disagree. While they have from time to
time highlighted needs at our PCSSD schools, such as College Station,
Intervenors did not fight the premise of PCSSD' s argument:

the

parties designed the supplement to§ Has the path toward substantial
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compliance on facilities.

Intervenors argue instead that PCSSD

stepped off that path and, though it has gotten back on it, the District
still has some distance to go.
The Court agrees with the Intervenors. Plan B was in good faith.
Plan B's implementation was not. The fits and starts at Mills High
School, and the favoritism toward the Robinson Middle project, did
not demonstrate to the public, students, and parents that PCSSD was
committed to Plan 2000 § H(1), as supplemented, and righting the
District's prior wrongs on facilities. Freeman, 503 U.S. at 491. Instead,
it was more of the same: unequal facilities based on race. LRSD v.

Arkansas, 664 F.3d at 753. The many fixes in the last two years are
commendable.

They are not, however, a complete cure for the

resulting inequity.
Mills High School and Robinson Middle School are both
excellent facilities. But, if Mills High gets an A, Robinson Middle gets
an A++. Mills is superior in only two ways: its new stainless steel
kitchen; and its magnificent auditorium, which is a smaller version of
the singularly impressive Maumelle High School auditorium.
Robinson Middle has no auditorium; it has a cafetorium. In almost
every other way Robinson Middle School is "superior," in Curtis
Johnson's apt word, to Mills High School.

Robinson's walls are

concrete block rather than gypsum board; the classrooms are larger;
every teacher has a classroom, while at Mills High five teachers are in
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rotation with other teachers for classroom space; the entrance atrium
is grander; the halls are wider with higher ceilings; its sports practice
building is better; and Robinson has an arena that seats more than
2,000 people, while Mills has a gym with a capacity of about 1,100.
Mills's maple floor is certainly better than Robinson's parquet. That
superiority must be cold comfort, though, to student athletes who are
consistently among our State's best, but whose school cannot host
tournament games because their gym is too small.
PCSSD spent more and got less at Mills High School than at
Robinson Middle School. Scott's favoritism is part of the explanation.
Notwithstanding its inability to follow Plan A because the proposed
millage had failed, through him the District decided that the new
Robinson Middle School would be the functional equivalent of a high
school. It is. Another important part of the explanation, the Court
concludes, is attention. Robinson's polished concrete floors are part of
that facility's wow factor. So are the ultra-modern light fixtures in the
cafetorium.

It turns out that both were less expensive than the

flooring and lighting used at Mills.

Careful attention to details

improves school buildings and saves money. The various Mills fixes
made under Curtis Johnson's leadership show what good stewardship
can accomplish.
What must PCSSD do to comply with§ H(l) (as supplemented)
and square up the Mills High School/Robinson Middle School
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inequity?

The Court declines to dictate particulars at this point.

Instead, it requests a proposal from the District. Various possibilities
were mentioned at trial- new and dedicated space for the Driven
program, new space for the ROTC program, more classrooms, or an
arena. The Court recognizes the constraints: dollars are finite and
needs are many. For example, PCSSD has other pressing facilities
needs, which Johnson described.

See also Intervenors' Exh. 49e.

Finishing the job at Mills High School must not hobble those efforts.
And schools, of course, are much more than buildings. The District
must also be a faithful steward of teachers, curriculum, and
everything else necessary to educate students. PCSSD has shown- in
the Plan A/Plan B proposal and in the Mills High School upgrades so
far - the capacity and the will to act in good faith. The District must,
after balancing all the other District needs, and after consulting with
the Intervenors, propose a plan for finishing this task. That is how
PCSSD can substantially comply with Plan 2000 on facilities.

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Student Achievement.***

Though one of the briefest parts of

Plan 2000, § M addresses perhaps the most challenging issue academics.

PCSSD has long been unitary on the home-school

counselor program required by§ M(2). LRSD v. Arkansas, 664 F.3d at
756 n.9.

The core dispute here is whether the District has

implemented the plan designed by Dr. Ross to improve student
achievement. Plan 2000 § M(l). As Margie Powell testified, the Ross
plan was a draft done more than two decades ago. PCSSD Exh. 2.
Recognizing that the particulars are somewhat timebound, the parties
have focused on the Ross plan's animating goals.

They're

comprehensive, covering everything from achievement to discipline.
Three of the goals are about academics.
• To improve educational achievement by all students,
with special attention to African-American students and
others who are at-risk of academic failure due to
socioeconomic disadvantages, or other factors.
• To decrease the performance gap between white
students and African-American students through the
systematic design/ selection and implementation of

***

M. Student Achievement

(1) The PCSSD shall implement the plans designed to improve
student achievement, recommended by Dr. Stephen Ross, and shall
work with Dr. Ross in their implementation. See Attachment (plans).
(2) The PCSSD shall continue to implement its home-school
counselor program.

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intervention
programs
that
provide
effective
remediation and/ or adaptation to individual or group
needs.
• To increase the number and proportion of African
American and disadvantaged students participating in
extracurricular activities, gifted programs and honors,
enriched, and advanced placement courses.

PCSSD Exh. 2 at 3. A fourth goal shades into monitoring, a standalone Plan 2000 obligation that the Court will address a bit here and in
detail later.
• To establish an ongoing, systematic evaluation system
at individual schools and the district level to:
o assess the progress made at school and district levels
in achieving the educational goals
o provide direction for
educational
program
indicated.

Ibid.

"Education Plan" and
improvements,
where

As the evaluation goal indicates, the bones of the Ross plan

require effort across the District and at each school. PCSSD Exh. 2

at 4-6.

This two-fold obligation was undisputed.

The parties

presented the case as one about fidelity: how faithful has PCSSD been
in pursuing the Ross plan's goals related to academics? The Court
endorses this approach.
The parties stipulated in 2013 that PCSSD was unitary on its
Plan 2000 obligations about standards for participating in advanced

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placement, gifted and talented, and honors programs, "including
standards to promote racial diversity in these programs." Plan 2000
§

D; Doc. 4960. The Court approved this stipulation and declared the

District unitary in that area. Doc. 4986. PCSSD' s efforts to pursue the
corresponding Ross plan goal were thus undisputed. PCSSD Exh. 2
at 3.

Ensuring access - especially for black students - to these

programs, which enrich students' academic experiences, is a threshold
indicator of PCSSD' s good faith on academic achievement.
Next, test results.

The record contains many years of data.

PCSSD Exh. 8-9; Intervenors' Exh. Sa-Sc. According to the numbers,

PCSSD has not achieved the Ross plan's goal of improving the
educational achievement of all students. The most recent ACT Aspire
test results, for example, show that most students are performing
below grade level in reading, science, and math. PCSSD Exh. 9 at
4137-38. This has been true for many years. PCSSD Exh. 9 at 3994,
4029-30 & 4086-87. And black students' scores consistently lag both

non-black scores and the District-wide average for every grade and
subject tested. PCSSD Exh. 8 & 9. Unlike with discipline, there is no
clear narrowing of the gap between black and non-black students.
PCSSD Exh. 8.

Ms. Powell helpfully summarized the ACT Aspire

results by grade and subject between 2016 and 2019 in her report.
Doc. 5550 at 3-5. There are ups and downs. PCSSD's charts show this,

as well as increases in the gap in some areas in recent years. PCCSD

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Exh. 212. The gap between black and non-black students' scores on

the ACT itself has also increased over the last few years.

PCSSD

Exh. 8 at 868; Intervenors' Exh. 2 at 1. Intervenors emphasize all these

test results. Dr. Warren agreed that numbers don't lie.
The Court rejected PCSSD' s proffer of evidence about the
performance gap in other central Arkansas districts and state-wide.
How PCSSD is doing comparatively is not the issue. The Court of
Appeals has been clear about this.

LRSD v. Arkansas, 664 F.3d at

751 (discipline) & 754 (staff).
The numbers don't lie, but they don't tell the whole truth, either.
Education is a people business-people who can't be reduced to
numbers. That observation holds especially true for the constantly
changing group of children moving through a big, urban school
district.

"[O]utcomes

are

not

determinative

of

good-faith

compliance." LRSD v. Arkansas, 664 F.3d at 756. Instead, the Court
must measure PCSSD' s efforts against its Plan 2000 obligations. Ibid.
The determinative issue is whether the District has implemented
measures designed to improve achievement by all students, especially
those who are black or disadvantaged, and to decrease the
performance gap between black students and others.
The Charles W. Donaldson Academy is an example of PCSSD's
recent Plan-compliant efforts. It came into the case by way of a 2014
joint motion. Doc. 5018. Dr. Guess was leading the District then. Dr.

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Warren and John Walker were also prime movers on the Academy. In
the parties' initial presentation to the Court, they firmly linked
PCSSD's $10 million commitment to the Ross plan's goal of giving
special attention to black students' academic performance. Doc. 5018
at 2. Mr. Walker confirmed this linkage in a hearing on the proposal.
Doc. 5032 at 8-9. The Court approved. Doc. 5029. The Donaldson

Academy prepares ninth through twelfth graders for college and
supports them there with scholarships.

The 2014-2019 summary

report, PCSSD Exh. 5, provides details, as do the periodic reports
submitted to the Court, PCSSD Exh. 6. There were summer bridge
programs (some weekends and some multi-week), tutors, ACT
bootcamps, Saturday sessions, and field trips. More than 2,400 PCSD
students have participated in some aspect of the Academy.

One

hundred seventy-five students received scholarships to Philander
Smith College and the University of Arkansas at Little Rock. PCSSD

Exh. 5 at 39. Other participants attended the University of Central
Arkansas and other colleges. Though they got no scholarships, the
program helped them get there.

As Dr. Warren testified, the

Donaldson Academy reflects the District's effort to improve academic
achievement, address achievement disparities, and nurture black
students. These are all Ross plan goals.
Intervenors noted that this program didn't help younger
students. True; it wasn't designed to do so. Intervenors also made a
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passing suggestion at trial that the District's support was less than
enthusiastic, at least in the early years. The Court disagrees. You
don't get thousands of students to participate in a program without
support from the central office and from counselors in the schools.
PCSSD promised $10 million and spent $10 million (with a pro rata
contribution from JNPSD in the third year of funding). PCSSD Exh. 7
& Doc. 5696 at 4. Ms. Powell was correct that, measured by the dollars

invested against the number of college attendees, this was an
expensive effort.

If we were weighing results, Dr. Warren's

persuasive testimony about the many benefits the Donaldson
Academy provided to all the other participating students should go
on the scale, too. But results aren't the measure. The Court agrees
with the PCSSD/Intervenors 2014 joint motion:

the Donaldson

Academy is "a substantial component of PCSSD' s desegregation
obligation on the subject of student achievement." Doc. 5018 at 3.
The Donaldson Academy is a main strand in what Ms. Powell
described as a net of PCSSD programs and initiatives on academic
achievement. Some are older, some newer. Some are State-required,
some PCSSD specific. District exhibit 199 lists them in creation-date
order. There have always been various initiatives and programs. As
Ms. Powell testified, what is different now is connectedness, both
between programs and in a District-wide commitment.

Many

initiatives are focused on black students and socioeconomically
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challenged students. As Alesia Smith, Dr. Warren, and Dr. Williams
testified, the programs' substance aligns with the Ross Plan goals.
Especially since Dr. McNulty' s advent in 2018, PCSSD leaders have
been united in an unflagging effort to reach all students.
The Intervenors doubt the District's commitment. They point
out that many of the initiatives are at a fledging stage; they see no
durable remedy in place;

and, while acknowledging that results

aren't determinative, they say students' poor performance indicates
lack of a real District commitment.
PCSSD is far from perfect in academic achievement, but the
Court disagrees with Intervenors' assessment of the District's efforts.
As Dr. McNulty put it, the overall academic health of the District has
improved. Some of the positive initiatives, such as Data Walls, are
more than a decade old. Others, such as Response to Intervention and
Professional Learning Communities, started small in 2012, produced
results, and went district wide. That's what PCSSD did with RTI in
2016 and PLCs in 2018. PCSSD Exh. 199. The Court has faulted the
District in the past for not expanding successful programs. E.g., LRSD
v. Arkansas, 664 F.3d at 756. PCSSD got this message. It is certainly

true that the number of initiatives picked up after Dr. McNulty
arrived in 2018. Given his background in challenged school districts,
it would be passing strange if he hadn't quickened PCSSD' s pace.

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While the Court can't discuss every initiative without unduly
lengthening this already lengthy opinion, some examples show
PCSSD' s efforts on student performance and closing the gap.
• Data Walls. When every student's performance is on the

wall, it is clear who's succeeding and who's not. Ms. Smith gave
compelling testimony about how she monitors each school's wall and
how teachers respond, student-by-student.
• Professional Learning Communities.

This is dedicated

time each week for teachers at each school to gather, compare notes on
what is working in the classroom and what is not. This is not watercooler time.

Smith monitors agendas.

The information can be

uploaded into each school's improvement plan. PCSSD Exh. 22-29.
• Response to Intervention.

This tiered approach to

discipline not only addresses the gap in that area, but it helps create
an environment where all students -particularly black students and
students with home challenges-can learn without discipline-related
disruptions. PCSSD Exh. 144.
• Common Formative Assessments. PCSSD has been using

this strategy since 2016. The point is to teach, assess promptly, and
then re-teach if necessary. The "common" part of the name indicates
that the assessments are grade-wide.
focus.

Individual students are the

Ms. Smith gave strong testimony about how this program

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works and how it benefits black students in particular. PCSSD Exh.
65-67.

• Advancement Via Individual Determination. This new
program, championed by Dr. McNulty and by Dr. Warren, was
launched District wide in 2019. AVID teaches students how to be
good students using writing, inquiry, collaboration, organization, and
culturally relevant reading. AVID is in all twenty-five PCSSD schools,
with special emphasis in the upper grades.

There is a college-

preparatory course, plus a critical-thinking emphasis, which is
employed in all courses. More than 380 PCSSD personnel have been
trained. AVID is not for the short-winded.

It will be at least three

years, probably longer because of COVID-19, to fairly judge the
program's effectiveness. It can take as long as seven years to make
permanent changes in a district's culture.

That's according to the

AVID Foundation's Dr. Wendell Brown, who is working with PCSSD.
He said PCSSD has made a "supercharged" launch compared to other
districts. The number of trained personnel show that his assessment
was not hyperbolic. And one of AVID' s main targets is narrowing the
performance gap-with rigorous standards, support for students,
teacher training, and positive reinforcement. PCSSD Exh. 13.
• Curriculum Maps and Teams.

Groups of educators

examine the standardized assessments and available resources and
then develop in-depth plans called "curriculum maps" for teaching
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standards to all students before annual testing. The map for a unit
includes the key standards, how to pre-assess students at the outset,
tasks keyed to the standards, essential questions for students,
multicultural resources, and a pacing guide for teaching the unit.

PCSSD Exh. 19-21. These maps and teams began in 2012.
The Court was, in summary, impressed with PCSSD's districtwide initiatives.
The Ross plan requires school-by-school efforts, too.

PCSSD

Exh. 2 at 5. Ninety percent of PCSSD schools now have a "living"
School Improvement Plan, one that is electronic and constantly being
updated. Examples were received in evidence. PCSSD Exh. 12. The
Court has noted that PCSSD' s past use of State-required school plans
did not keep faith with the Ross plan. LRSD v. Arkansas, 664 F.3d
at 756.

When he arrived in 2018, Dr. McNulty recognized the

shortcomings of the existing school plans. Improving them was a
priority for him. As part of their monitoring efforts through Ms. Joy
Springer and others, Intervenors noted that the schools' plans needed
to speak in terms of the Ross plan's goals.
Intervenors say it took too long.

This has happened.

But much of the substance -

improving achievement of all students and closing the gaps-was
there before. And under Dr. McNulty's leadership, the Ross plan's
goals are now explicit and emphasized. PCSSD Exh. 12. The Court
was also persuaded by Ms. Smith's testimony about her ongoing

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school-by-school evaluation of the net of academic programs. The
Court didn't see the binder she keeps for each school but has no doubt
that they exist and are overflowing. Her oversight is precisely the
kind of vigilance required by Plan 2000 § M and the last Ross plan
goal-" an ongoing, systematic evaluation" to assess progress at each
school.
Much remains to be done at PCSSD on academic achievement
and the performance gap. Everyone recognizes this. Intervenors are
certainly right that some important District initiatives, such as AVID,
are in early days. This circumstance, though, is unremarkable in a
large institution that should always be seeking to do better. The core
issue is whether PCSSD has done enough in good faith so far to
comply with § M, implementing programs in pursuit of the Ross plan
goals and demonstrating an entrenched commitment to our
Constitution's ideal of equal protection under law. It has.

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Monitoring ...,...,. PCSSD was unitary in two of its three Plan 2000
monitoring obligations in 2011. LRSD v. Arkansas, 664 F.3d at 757.

****

N. Monitoring

(1) The Assistant Superintendent for Desegregation shall:
(i) develop a plan so that he (or she) and his (or her) staff focus their
monitoring and compliance efforts on the specific elements of this
Plan; and (ii) provide the Joshua Intervenors within 30 days of the
court's approval of this Plan a list, geared to the sections of this Plan,
identifying the staff member or members with particular
responsibilities for its implementation and the position held by each.
(2) Upon reasonable notice, the Joshua Intervenors shall have
the opportunity: (i) to examine and secure copies of records relating
to the PCSSD' s compliance with this Plan, including records identified
in this Plan, and (ii) to meet with the Assistant Superintendent for
Desegregation or a staff member responsible for a particular part of
the implementation of the Plan.
(3) The PCSSD shall submit statistical reports showing the
following:
(a) The enrollment in each school by race;
(b) The enrollment in gifted and talented programs,
honors programs, and advanced placement classes,
by school and by race;
(c) The make-up of special education programs: (i) by
disability category, including Section 504, by race,
and by sex; and (ii) by school by race, and by sex;
provided that the system my comply with this
reporting requirement by providing copies of
materials submitted to ADE, as long as they include
all information designated in this paragraph;
(d) For each school and the system, the number of
instances of each form of discipline, by race and by
sex; for each school and the system, the number of
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The District's door has remained open to Intervenors for meetings
with staff and for gathering documents, § N(2). And the District has
continued to submit various statistical reports required by § N(3).

E.g., PCSSD Exh. 192 (2018-2019 monitoring and compliance report)
and

PCSSD

Exh. 90-97 (annual discipline report summaries).

Plan 2000 § N(l) required PCSSD to identify which staff members
were responsible for monitoring and complying with each part of the
Plan and to inform the Intervenors. There was no real dispute about
this.

Dr. Warren testified that she provides the Intervenors the

required list of responsible staff each year. § N(l)(ii).
PCSSD now goes to great lengths to evaluate compliance with
various Plan 2000 obligations, including in areas where the District
has achieved unitary status.

Here, too, the proof confirmed Ms.

Powell's pre-trial conclusion, Doc. 5559 at 4-5. Intervenors argue that

students receiving each form of discipline, by race
and by sex;
(e) The racial make-up, in each school, of (i) the
administrators, (ii) the faculty, (iii) other professional
staff, and (iv) support staff;
(f) The racial make-up, by category, of the various
categories of administrators, faculty, support staff,
and other workers employed in the PCSSD.
The information in all sub-paragraphs other than sub-paragraph (d)
shall be submitted not later than November 1 of each year, and the
information in sub-paragraph (d) twice a year, not later than 30 days
after the end of each semester.
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the District's annual summary reports are a bit formulaic. There is, in
fact, some carry over across the years. Compare PCSSD Exh. 192 & 193.
But look behind these summaries. The action is at each school where
a committee evaluates various equity issues and measures progress
year to year. These equity monitoring reports, e.g., PCSSD Exh. 19496, are comprehensive. And their conclusions flow into an action plan
for each school.

PCSSD Exh. 113-15.

Intervenors questioned Dr.

Warren at some length about why, as of 2018-2019, problems such as
non-diverse seating arrangements and insufficient multicultural
materials on bulletin boards still cropped up from time to time. Dr.
Warren's response was convincing:

a perfect report would be

concerning; some imperfection indicates real evaluation of fallible
people and an ongoing effort to improve. That monitoring effort is
what Plan 2000 § N(l) requires and what PCSSD has done. Freeman,
503 U.S. at 491-92.

With the noted exception on the Mills High School facilities
issue, PCSSD is unitary in all four areas remaining under Court
superv1s1on.

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JNPSD. The new District remains under supervision on staffing

incentives, discipline, academic achievement, and monitoring.

Staffing Incentives.***** In 2018, the Court held that JNPSD was
unitary on most staffing issues. Doc. 5445 at 8-20. The exception was
one part of § L(3)- offering incentives for black teachers to obtain
certification in early childhood, primary, and secondary core areas.

Doc. 5445 at 18-19.

JNPSD says it has now met its incentives

obligations. The District points to its tuition reimbursement program,
its Grow Your Own program, and its teacher cadet pathway for
current high school students.

The unrebutted testimony from

Dr. Bone was that 60% of teachers work within twenty miles of where
they graduated high school.

So the teacher cadet pathway is an

excellent long-term effort to cultivate potential teachers for the
district. And because more than half of the participating students are
black, the program demonstrates JNPSD' s continuing good faith on
§ L(3) recruitment obligations, on which the District is already

*****

L. Staff

(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 African-American teachers to obtain certification
in these areas, and to assign those teachers to the PCSSD schools
where the greatest disparity exists.
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unitary.

JNPSD Exh. 9.

The core on incentives is tuition

reimbursement for any certified teacher and Grow Your Own, which
supports current JNPSD employees who are not teachers in becoming
certified to teach.
The

District

has

redoubled

its

efforts

to

use

tuition

reimbursements to encourage certification of black teachers in needed
areas. Forty thousand dollars is available each year. JNPSD Exh. 2.
JNPSD uses the program to recruit black teachers. The dollars are also
available to current teachers in the district.
priority in getting the benefits.

Ibid.

Black teachers have

In 2019-2020, for example,

eighteen folks were approved for reimbursement, seven of whom
were black. Intervenors fault the District for allowing teachers of any
race to benefit, but the priority status for black applicants satisfies
Plan 2000' s incentive requirement.
Dr. Bone described Grow Your Own as her baby. The target
group is current JNPSD employees who have a bachelor's degree but
no teaching certificate- paraprofessionals, secretaries, and others.
The program helps them get certified with tuition reimbursement,
tutoring, and exam costs. JNPSD Exh. 1. Fifteen thousand dollars is
available each year. So far, almost all participants have been black.

JNPSD Exh. 8. As Dr. Bone testified, the link to Plan 2000 is that the
District is encouraging certification in elementary and core areas.

JNPSD Exh. 1 at 3. Intervenors rightly note that while many have
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begun this program, few have completed it. JNPSD Exh. 8.

And

there's no reimbursement for tuition or testing without certification.

JNPSD Exh. 1 at 1. But the law doesn't require success; it requires
effort in good faith.
JNPSD has offered incentives for black teachers to obtain
certification in the critical areas. The District has therefore complied
with the only outstanding slice of§ L(3) and is unitary in staffing.

Discipline. The letter of Plan 2000 § F on discipline is in the
margin at pages 16-17. In summary, these are JNPSD's inherited
obligations: data gathering, § F(l); identifying teachers and schools
with high rates of discipline and racial disparities, § F(2); specific
efforts to eliminate racial disparities, § F(3);

studying causes and

possible remedies for high discipline rates, § F(4); initiatives to reduce
disparities, § F(5);

and handbook fidelity, § F(6).

A decade ago,

PCSSD was complying with Plan 2000 in several of these areas, and
that compliance carried over into JNPSD and has continued, with
important changes for the better.
JNPSD excels at gathering and disseminating discipline-related
data. There's a weekly report, an Excel spreadsheet of many tabs,
which is sent to all campus administrators. Dr. Tiffany Bone, the
assistant superintendent for secondary curriculum, student services,
and desegregation, and Gregory Hodges, the assistant superintendent
for elementary instruction and education, get copies.

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This report

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identifies by school the teachers, administrators, and staff making
referrals, the kind of discipline imposed, as well as the race of the
students disciplined. E.g., JNPSD Exh. 19. The report is color coded,
like a traffic light, so that building administrators and District leaders
can easily identify teachers and schools with high numbers.

Red

means many discipline referrals, yellow some, and green a few.
There's

a

weekly

"discipline

error"

report,

which

allows

administrators to spot coding mistakes and check conformity with the
student handbook. E.g., JNPSD Exh. 26. Every four to six weeks,
there's an equitable campus discipline" report, which breaks things
II

down by race and gender for each school.

E.g., JNPSD Exh. 33.

There's also a quarterly report, which builds through the year, and
which shows the consistency of discipline imposed by race and
gender.

E.g., JNPSD Exh. 27 & 28. An at risk" report identifies
II

specific students who are tardy, absent, being disciplined, or
struggling academically.

JNPSD Exh. 39.

Administrators get this

report. And there are District-wide semester and annual reports that
summarize all the discipline information. JNPSD Exh. 82-87. The
integrity and thoroughness of all these reports was unchallenged.
Through them, JNPSD has substantially complied in good faith with
the data-gathering aspects of§ F(l) & (2).
As the Intervenors emphasized in their questioning of District
witnesses, gathering data is one thing, while acting in response to it is
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another.

Plan 2000 § F(3) requires JNPSD to undertake "specific

efforts" to work with teachers and staff who have high discipline rates
"to promote achievement of the goal of eliminating racial disparities
in school discipline." The District has made specific efforts. First,
names and numbers are provided regularly, and in some instances
almost immediately, to building-level administrators.

This allows

prompt responding action. Second, Dr. Bone and Mr. Hodges keep a
weather eye on the reports and campus administrators' efforts.
Hodges described this as identifying teachers that are in the wrong
seat on the bus. The District tries to get them in the right seat with
TESS (the state's teacher evaluation tool), mentoring, sending them to
equitable discipline training (an annual state program), and
developing individual plans for improvement. Two principals- Dr.
Janice Walker (Lester Elementary) and LaGail Biggs Oacksonville
High School) - gave persuasive testimony about these kinds of efforts
at their schools. For example, Ms. Biggs testified that during the first
year implementing the mentoring program, some teachers were
concerned that the mentors might be "the eyes and ears" for the
administration. The District has since made it clear to teachers that a
mentor will contact an administrator only if the teacher is
stonewalling the mentor. Otherwise, the relationship is confidential.
Continuing his metaphor, Hodges said that, if a teacher did not
respond, then their contract would not be renewed because they' re on
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the wrong bus, given this District's student body and goals. Dr. Bone
confirmed that a couple of teachers who were uncooperative during
the first year of the mentoring program left the District rather than
accepting support. JNPSD has substantially complied in good faith
with its§ F(3) obligations.
Like PCSSD, JNPSD has not done the comprehensive discipline
study required by§ F(4). Ms. Powell's expert report did not touch on
this other than to say the obligation was timebound. Doc. 5538 at 2.
This is certainly true; Plan 2000 contemplated the study being done
within a few months of this Court's approval of the Plan decades ago.
Intervenors' Exh. 63a at 3-4. But, as Intervenors note and as the Court

has held as to PCSSD, the calendar is not a complete answer. The
study could have been done belatedly. That it was not weighs against
JNPSD.

But the District has not closed its eyes to the causes of

disparities in discipline or to promising cures. JNPSD' s many reports
show self-study and scrutiny. The training provided to teachers with
lots of referrals and to administrators with high discipline rates shows
the District's continuing intention to address race-based disparities.
And, as will be explained below, JNPSD's many programs that
address both performance and discipline recognize the deep linkage
identified by § F(4)'s reference to "unmet academic needs and
discipline rates."

Considered on balance with all the material

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circumstances about discipline, JNPSD's lack of a § F(4) study is not
determinative.
Of course JNPSD did not exist in 1998 when ODM reported
troubling discipline rates.

As to the new District, § F(5) is best

understood to require good faith efforts in pursuing the Ross plan's
goals about discipline.

One goal is, without regard to race or

background, "[t]o reduce the number of discipline problems and
classroom disruptions caused by all students," and "[t]o increase
student attendance and reduce suspensions and grade retentions for
all students[.]" Intervenors' Exh. 63b at 3. Another is to "promote
achievement of the goal of eliminating racial disparities in school
discipline[,]" as recognized by§ F(3).
JNPSD has made substantial efforts in pursuing these goals.
Like PCSSD, the District has healthy Response to Intervention and
Positive Behavioral Interventions and Supports programs. It employs
behavior specialists who work with teachers and students to develop
individualized plans for students.

Under Dr. Bone's leadership,

JNPSD reorganized the school day, which now has fewer periods of
longer duration.

This change is important on academics;

it is

important on discipline, too, because of the time created to address
behavior issues - Titan Time at the high school and similarly named
sessions in lower grades. The District uses "second step" curriculum,
which builds social and emotional skills.
-52-

The ENVoY program

Case 4:82-cv-00866-DPM Document 5730 Filed 05/06/21 Page 53 of 68

provides outside consultants who coach high school teachers on
classroom management. And JNPSD has various alternative learning
environments for students with significant behavioral issues. These
range from one at the elementary level, which the Court saw at Lester
Elementary during the school tours, to the Titan Academy, a separate
facility for high school students.

One component of the Titan

Academy is The Hub, which works with pregnant students and others
in need of a flexible schedule to reduce drop outs and grade repeats.
What are the results?

It was common ground that overall

discipline rates are down throughout the District. The annual reports
show this. E.g., JNPSD Exh. 85 & 87. Disparities by race, however,
continue. This unacceptable condition was Intervenors' main critique.
A comparison from 2016 to 2020 shows trends in the right direction:
the gap between black and non-black students decreased across those
years in suspensions (19% to 10%), in-school suspensions (20% to
10% ), and expulsions (0.8 % to 0.3 %). JNPSD Exh. 89 & 90; see also

JNPSD Exh. 36 at 3-5.

(These percentages are approximate.

The

percentages in the annual snapshot tables differ slightly from those in
the summary reports because of variations in the enrollment numbers
used for each. Compare, e.g., Exh. 90 at 2 with JNPSD Exh. 85 at 4, 6, 8
& 12.) Of course the trend lines are not straight, and there is variation

among schools. JNPSD Exh. 46-49 (2019 data). The results are good

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fruit, but more important are JNPSD' s many efforts, which are bearing
this fruit.
Those efforts remain imperfect.

Intervenors offered some

granular proof, for example, that revealed an area still needing
attention. Intervenors' Exhibit 30 is a chart based on a snapshot of
2019-2020 data about disparities in discipline for failure to follow

directives, disruptive behavior, insubordination, and disorderly
conduct. There are disparities ranging from approximately twenty to
thirty percent between black students' share of the student body and
the rates at which they' re disciplined. (This is a different calculation
than the one the District uses, which compares the rates at which
black and non-black students are disciplined, to capture the disparity.
Compare Intervenors' Exh. 30 at 2 with JNPSD Exh. 88 & 90.)

As

Intervenors emphasized, there's a great deal of subjectivity involved
in what crosses the line for these kinds of offenses. These disparities
make an important point: JNPSD must continue striving to ensure
both that schools are places of order, where all are shown respect, and
that needed discipline is imposed fairly without regard to race. The
Court is confident that the District is in fact striving to do both things.
All the District leaders who testified about discipline recognized
JNPSD' s need and obligation to keep striving. And, again, substantial
compliance in good faith is primarily a function of effort, not results.

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LRSD v. Arkansas, 664 F.3d at 747.

The District has substantially

complied in good faith with its§ F(5) obligations.
Last, handbook fidelity. There was no dispute that the District
had a single hearing officer for discipline appeals (Mr. Smith) and that
JNPSD' s handbooks embody a Plan-conforming process for discipline
appeals.

E.g., JNPSD Exh. 17 at 9342.

As mentioned, one of the

District's many reports prompts administrators to take a weekly look
at discipline coding to fix errors. Another- the "equitable campus
discipline" report- reveals by race and gender whether each campus
is imposing discipline on an equitable basis.

These reports show

imperfection, which Intervenors highlighted.

E.g., JNPSD Exh. 33

& 34.

In Smith's frequent emails distributing the reports and

comparing one school to another, however, the Court sees the
ongoing pursuit of improvement. JNPSD Exh. 33-38. Schools that are
following the handbook and disciplining students equitably are
commended, while those that are falling short are exhorted to do
better. In particular, JNPSD is making a good faith effort to treat all
students fairly by scrutinizing who is being disciplined, what students
are being disciplined for, and what consequences are being imposed.
All this is to the good.
Based on all the evidence of record, JNPSD is unitary on all its
discipline obligations.

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Student Achievement. JNPSD contends that it has complied with

its § M obligations. Before detachment, the Court granted unitary
status on § M(2)' s provision about home school counselors. JNPSD
inherited this status.

Intervenors do not argue otherwise.

They

vigorously dispute, however, whether JNPSD has implemented plans
designed to improve student achievement by all students, especially
those who are black or disadvantaged, and to decrease the
achievement gap between black students and other students, all in
pursuit of the Ross plan's goals for academic achievement. Those are
the obligations imposed by Plan 2000 § M(l). Mindful that "outcomes
are not determinative of good-faith compliance[,]" the Court must
measure JNPSD' s efforts in its relatively short life as a separate
district. LRSD v. Arkansas, 664 F.3d at 756.
The place to start is with some hard truths. According to the
ACT Aspire test results, most of JNPSD' s students are performing
substantially below grade level. JNPSD Exh. 134, 135 & 136. And, in
general, the performance gap between black and non-black students is
either holding steady or getting worse.

JNPSD Exh. 190 & 191;

Intervenors' Exh. 21. Ms. Powell documented these facts before trial.
Doc. 5540 at 4-6. The evidence received in testimony and exhibits

confirmed it.
horrendous.

Intervenors characterized these circumstances as
One need not endorse that adjective to reach the

inescapable conclusion: JNPSD' s students have profound academic
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needs.

The parties have a simmering dispute about the exact

relationship between poverty and academic performance.

As this

Court put it many years ago, speaking through Brother Wilson, the
"Metaphysics of Using the' Achievement Gap' as a Factor in Deciding
Unitary Status" is a vexed issue. LRSD v. PCSSD, 237 F. Supp. 2d
at 1036-40. This record presents no occasion to resolve that issue. It
suffices to say that a child who comes to school hungry, or in dirty
clothes, or having left a home in tumult will not be as ready to learn as
a peer without these challenges. Every witness on point agreed with
this proposition, which is really just common sense.

Elementary

schools should not have to have clothes closets, food pantries, or
washing machines and dryers.

But these needs are there, and so

JNPSD' s elementary schools meet them as best they can. The material
fact is that JNPSD serves many children who face these challenges
regularly.

This fact is not an excuse for the District's academic

performance; it is a truth that JNPSD must face squarely and address
unflinching! y.
Dr. Duffie did so when he arrived as superintendent several
years ago in 2017. He blew the bark off the tree in a meeting with all
the district administrators.

Intervenors' Exh. 2.

According to the

minutes, Dr. Duffie (seconded by Dr. Bone and Mr. Hodges) made
many key points. Here are the first six.

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1) No real sense of urgency regarding test scores in the
district; staff seems unconcerned.
2) It is very important to operate as ONE system; we
still have 9 separate kingdoms and I don't want that;
we should not be competing against each other; we
are fighting our own people.
3) I need you to worry less about the "happiness" of
your staff and much more about the effectiveness of
your staff in guaranteeing that our scholars are
LEARNING and SAFE.
4) This is a TOUGH job in a TOUGH demographic.
This isn't the place for everyone. We must have
employees who are willing to go the extra mile, do
more than the bare minimum, and take ownership
of the learning FOR their students who don't know
how to own their education. This is where the
REAL work can be done for those willing to work
this hard. Everyone isn't. Identify them. Help them
find their place or their passion and do it quickly.
5) We seem to have a large number of staff members
who truly do want to improve the system but they
don't really know how.
6) I expect administrators to deal with those staff
members who don't want to get on board with what
we expect them to do.

Ibid. The minutes of other leadership meetings and strategy sessions
in later years, and related testimony about those meetings, show the
central staff's commitment to pressing forward. Intervenors' Exh. 6, 7,

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8, 10, 14 & 16; JNPSD Exh. 118. JNPSD's academic challenges are not
being ignored or shirked; they're recognized and embraced.

JNPSD Exh. 130.

E.g.,

Dr. Bone testified with emotion about the joy she

has found in working at school districts with these challenges,
including JNPSD.

Mr. Hodges and Mr. Smith spoke about their

considered choices in moving from high achieving districts to
JNPSD-to help these challenged students.

Hodges explained his

calling to work with black students, especially elementary-age black
males.

Smith- the man of many reports - obviously delighted in

addressing students' challenges with a systemic and constant flow of
data. See his emails, which combined cheerleading and prodding.

E.g., JNPSD Exh. 33. Dr. Walker and Ms. Loring, building principals,
showed the same commitment. The Court saw no complacency in
JNPSD' s administrators. It saw devotion.
Grant the commitment, but-Intervenors reasonably sayscrutinize the actions. The Court has done so.
There is much planning. The District's strategic plan identifies
academics as a focus area: "Expect high-quality teaching and learning
at JNPSD[:] Improve instruction and student achievement." JNPSD

Exh. 105 at 5467. The plan then quotes the Ross plan's goal about
improving student achievement and provides related actions. Each
school has a campus-specific strategic plan.

E.g., JNPSD Exh. 99

(Taylor Elementary). These plans are built around current students.
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According to Dr. Bone, they are "living, breathing documents." Ms.
Loring confirmed her experience as a new principal in refining
Taylor's plan.

These plans have interim "SMART" goals that are

Specific, Measurable, Attainable, Relevant, and Time-based. The Ross
plan's goals are included.

E.g., JNPSD Exh. 99 at 8854-55, 8858.

Intervenors deserve credit for nudging JNPSD to quote the Ross
plan's goals in each school's strategic plan.

But, as assistant

superintendent Hodges testified, the substance was there before these
references. E.g., JNPSD Exh. 95 at 4515. JNPSD' s planning is action on
achievement issues.
The plans also reflect the District's many programs and
initiatives on this front.

The Court heard much testimony about

Response to Intervention, Professional Learning Communities, and
Advancement Via Individual Determination.

PCSSD has these

programs, too, so the Court will not repeat a description of them. See

supra at 39-40. There are differences. JNPSD is much smaller, about
one third the size of the County District.

The programs'

implementation at JNPSD reflects this with a greater focus on
individual students.

Some highpoints.

Dr. Bone emphasizes the

Professional Learning Communities as one way of addressing the
District's many inexperienced teachers.

The District supports the

program with consultants from Solution Tree. Mr. Hodges testified,
too, about the importance of the time devoted each week to these
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collaborations district wide. These are gatherings by subject area (for
example, all the math teachers).

Among more general topics, the

teachers discuss particular students' academic challenges.
A few years ago, JNPSD started AVID in the sixth and ninth
grades, and it is being "rolled up" with those two classes. Before she
became Taylor Elementary' s principal, Ms. Loring was JNPSD' s
curriculum coordinator and helped bring AVID to this District. She
explained convincingly about how AVID targets middling students
with potential, and thus links with the Ross plan's goals of improving
achievement of black students and students facing socioeconomic
challenges, as well as reducing the achievement gap. AVID aims at
improving all students' school skills, with an emphasis on college
preparation.

JNPSD Exh. 141-42.

Ms. Biggs said the freshman

seminar is helping her new students in the transition to high school.
The Court saw college banners at Taylor Elementary and heard from
Ms. Loring about college-tee-shirt days and planting that seed early.
Response to Intervention is a pillar program. RTI' s tiers, the
students in them, and the District's responding actions are
emphasized. E.g., JNPSD Exh. 133 & 148-50. Each school's RTI team
(administrator, counselor, teachers) meets either weekly or biweekly.
"RTI (done the way the district has prescribed it) is a nonnegotiable[.]" Intervenors' Exh. 2 at 2.

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JNPSD has participated in the Charles W. Donaldson Academy,
too. Ms. Biggs (the high school principal) and Dr. Bone testified about
how it has benefitted students. Dr. Bone said that she had not heard
from those running the program, which is based at U ALR, in the last
two years. There seems to have been some recent slippage here, at
least in communication, which is concerning. But Dr. Bone and Ms.
Biggs were clear about past benefits to students at JNPSD high school.
JNPSD also has novel academic initiatives and efforts.

For

example, it takes advantage of teacher training and support through
the Wilbur D. Mills Educational Co-op. Dr. Bone and Dr. Walker both
testified about the co-op resources. JNPSD often meets teacher needs
revealed in the Professional Learning Community meetings through
co-op programs.
JNPSD deploys MAP testing three times a year:

September,

November/December, and March. JNPSD Exh. 165-68 & 170-81. As
Ms. Garrison (the former District Testing coordinator) explained, the
District wants to know where each student is at the start of each year,
how they've progressed after a few months, and how they've
progressed near year end. The results are shared with teachers and
administrators and analyzed.

All this is in service of improving

academic achievement. Garrison's prediction, based on MAP scores,
was that JNPSD students were on track to do better on the spring 2020
ACT Aspire tests than in years' past. There is no way to confirm that
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prediction, however, because the pandemic meant there were no such
tests given.
Titan Time (under various names depending on grade level) is
another JNPSD innovation. JNPSD Exh. 148. Mr. Hodges brought it
to the District. It is a daily set-aside period of interventions in various
subject areas, such as math or reading, as well as behavioral issues.
JNPSD also has a robust mentoring program to help its young crop of
teachers. Ms. Loring identified this as a particular need. The mentors
(other teachers)

and

the

mentees

are

paid for

after-hours

collaboration. This program touches both discipline and achievement
because it helps new teachers learn classroom management skills so
they can reduce discipline referrals and spend more time teaching.
While learning is a good thing in and of itself, one practical
purpose of the Ross plan's goals is to better prepare students for their
next step, whether it be higher education or a job. Dr. Bone testified
that one of her aims is for a JNPSD diploma to mean something-that
a JNPSD graduate could get a job and support a family. The new Ford
NGL initiative advances this aim. JNPSD Exh. 160-64. The District
had a pathways program that emphasized career-directed courses.
Ford NGL builds on this idea in partnership with local industry. The
Court saw the program in action when it toured the new JNPSD high
school. Ms. Biggs, the high school principal, testified about it. There's
a freshman academy where students are exposed to various career
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areas. In tenth through twelfth grades, students can elect courses in
one of three broad domains: marketing (business and culinary arts);
business and computer-aided drafting (IT emphasis); and health and
safety (CNA and phlebotomy). The point is to engage students in
their studies by organizing instruction around a future of meaningful
work. Though it's too soon to tell whether the Ford NGL program
will work at JNPSD, it has succeeded elsewhere, employers in central
Arkansas support it, and other local school districts are participating.
The program is a promising way to reach and help JNPSD's high
school students.
It has been well said that the important question is not "Are you

busy?" but "What are you busy about?" JNPSD is busy about trying
to improve the academic achievement of all its students, especially
those who are black or poor or stuck in a troubled home.
groups

include

many,

many

of

the

District's

Those

students.

Notwithstanding the bad test results and the continuing academic
challenges they reveal, JNPSD has complied in good faith with
Plan 2000 § M(l). It has made, and is making, sustained efforts to
improve student achievement and close the achievement gap between
black students and non-black students. That effort, not success, is
how the law measures JNPSD' s good faith compliance, which in tum
illuminates whether the District has eliminated the vestiges of

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segregation to the extent practicable.

Freeman, 503 U.S. at 491-92

& 496; LRSD v. Arkansas, 664 F.3d at 747.

Monitoring. As in other areas, PCSSD was unitary on several
aspects of its § N obligations on monitoring a decade ago, and JNPSD
is entitled to the benefit of this history. But, the monitoring duties
seep through the whole of the case. The Court will therefore touch on
all of them.
There's

no

uncertainty

about

the

individuals

primarily

responsible for the new District's desegregation efforts. Those efforts
are one of Dr. Duffie's priorities.

They are Dr. Bone's main task,

assisted by Mr. Smith and Mr. Hodges. As§ N requires, JNPSD has
plans to guide its ongoing evaluation of compliance: the District's
strategic plan and one for each school. JNPSD Exh. 105 & 92-104. Dr.
Duffie testified about his "back doors" - regular unannounced visits
to all the schools. He not only observes, he also asks teachers and
administrators how various programs are working. Dr. Bone spends
much of her time monitoring each school's performance and
conformity with Plan 2000-related programs. Mr. Hodges does, too,
albeit focused on the various elementary schools. Mr. Smith provides
a flow of information in his various reports, some of which JNPSD
created from scratch. They're all important, as Dr. Duffie testified,
because the District needs to see the trends - "good or bad" - so it can
either expand successful efforts or stop and replace unsuccessful ones.
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The District issues discipline reports quarterly, twice as often as
Plan 2000 requires.

Compare § N(3) with JNPSD Exh. 27 & 28.

Intervenors fa ult JNPSD for not having one comprehensive report,
like PCSSD's. This is a matter of taste rather than substance. Smith's
regular reports, as well as JNPSD' s more general reports, satisfy the
District's § N(3) reporting obligations.

And JNPSD' s compliance

efforts go to its § N (1) obligations.
The parties' dispute here, to the extent there is one, is about
§ N (2)' s open-door requirement. JNPSD says its records, including all

the reports, are readily available, many on the internet. Intervenors
respond that there's been foot-dragging and needless involvement by
counsel. They also say that, from time to time, the internet links have
not worked.

The Court acknowledges all this static.

The

JNPSD/Intervenors relationship has been more adversarial than the
PCSSD /Intervenors relationship.

The static and periodic disputes,

however, are not material. At the Court's direction, the parties have
participated in regular

meetings- monthly and now bimonthly.

When the Intervenors sought to meet with a specific administrator, or
visit a particular school, JNPSD arranged it. Information requested
has been supplied or directions about its public location have been
provided, albeit with occasional and unremarkable internet problems.
The

District

has,

1n

summary,

records/ meetings obligations.
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complied

with

its

§ N(2)

Case 4:82-cv-00866-DPM Document 5730 Filed 05/06/21 Page 67 of 68

Ms. Powell brings a long perspective to the case. She began her
work at the Office of Desegregation Monitoring three decades ago
with responsibility for overseeing the North Little Rock School
District's efforts.

She testified that NLRSD' s monitoring was

kindergarten compared to JNPSD' s high school. Discounting for both
time and differing circumstances between these Districts, her
comparison is a powerful one.

The new District's efforts are

comprehensive. The timing aspect is what struck the Court. Data
flows continuously. Central office staff (Dr. Bone and Mr. Hodges)
work regularly with building-level administrators (e.g., Dr. Walker,
Ms. Loring, and Ms. Biggs), who work in turn with teachers. This is
monitoring in action, as§ N(l) contemplates. JNPSD has substantially
complied in good faith with all its § N monitoring obligations.

*

*

*

Motion to allocate the burden of proof, Doc. 5610, denied.
Motion to strike, Doc. 5724, denied as moot.

JNPSD's motion for

unitary status, Doc. 5686, granted. With the exception of completing
its 2018 master facilities plan as modified, JNPSD is unitary.
remains obligated to file its annual reports every July.

It

PCSSD's

motion for unitary status, Doc. 5621, partly granted and partly denied.
With the exception of truing-up the Mills High School/Robinson
Middle School problem, PCSSD is unitary.

Proposal on the

Mills/Robinson issue due by 1 August 2021. PCSSD does not have to
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file any more bimonthly facilities reports. There is no further need for
the parties' regular lunch meetings. The Court encourages counsel to
meet (either in person or remotely) and confer about a reasonable
attorney's fee for monitoring both Districts since the last fee award, as
well as for the litigation about PCSSD facilities issues, on which
Intervenors have prevailed.

Intervenors must provide their

supporting records to the other parties by 18 June 2021. Motion for
fees (either unopposed or opposed) due by 30 July 2021 . With the
exception of the noted facilities issues, and the fee issues, which are
collateral, this Court's jurisdiction over the Pulaski County Special
School District and the Jacksonville/North Pulaski School District is at
an end.
So Ordered.

.
D.P. Marshall Jr.
United States District Judge

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