Little Rock School Dist. v. North Little Rock Sch.

• Decision Date: 02 April 2009
• Docket Number: No. 07-1866.,07-1866.
• Citation: 561 F.3d 746
• Parties: LITTLE ROCK SCHOOL DISTRICT, Plaintiff/Appellee, Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua, Intervenor Plaintiffs/Appellants, v. NORTH LITTLE ROCK SCHOOL DISTRICT; Pulaski County Special School District; State of Arkansas, Defendants. Dale Charles; Robert L. Brown, Sr.; Gwen Hevey Jackson; Diane Davis; Raymond Frazier, Plaintiffs, v. Pulaski County Board of Education; Patricia Gee, Individually and in her Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body; George Cannon, Dr. Individually and in his Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body; Katherine Mitchell, Dr., Individually and in her Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body; W.D. Hamilton, Individually and in his Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body, also known as Bill Hamilton; Cecil Bailey, Individually and in his Official Capacity as a Member of the Pulaski County Board of Education, a Public Corporate; Thomas Broughton, Individually and in his Official Capacity as a member of the Pulaski County Board of Education, a Public Corporate; Martin Zoldessy, Dr., Individually and in his Official Capacity as a member of the Pulaski County Board of Education, a Public Corporate, Defendants. State of Arkansas, Amicus on Behalf of Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

561 F.3d 746

LITTLE ROCK SCHOOL DISTRICT, Plaintiff/Appellee, Lorene Joshua, Leslie Joshua, Stacy Joshua, Wayne Joshua, Intervenor Plaintiffs/Appellants, v. NORTH LITTLE ROCK SCHOOL DISTRICT; Pulaski County Special School District; State of Arkansas, Defendants.

Dale Charles; Robert L. Brown, Sr.; Gwen Hevey Jackson; Diane Davis; Raymond Frazier, Plaintiffs, v. Pulaski County Board of Education; Patricia Gee, Individually and in her Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body; George Cannon, Dr. Individually and in his Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body; Katherine Mitchell, Dr., Individually and in her Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body; W.D. Hamilton, Individually and in his Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body, also known as Bill Hamilton; Cecil Bailey, Individually and in his Official Capacity as a Member of the Pulaski County Board of Education, a Public Corporate; Thomas Broughton, Individually and in his Official Capacity as a member of the Pulaski County Board of Education, a Public Corporate; Martin Zoldessy, Dr., Individually and in his Official Capacity as a member of the Pulaski County Board of Education, a Public Corporate, Defendants.

State of Arkansas, Amicus on Behalf of Appellee.

No. 07-1866.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2008.

Filed: April 2, 2009.

John Winfred Walker, Sr., argued, Little Rock, AR, Robert Pressman, on the brief, Lexington, MA, for Appellant.

Christopher Heller, argued, Scott P. Richardson, AAG, Mathew B. McCoy, AAG, amicus curie, on the brief, Little Rock, AR, for Appellee.

Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

WOLLMAN, Circuit Judge.

This case is once again before us, this time by way of an appeal by the intervenor plaintiffs (Joshua) from the district court's¹ order declaring the Little Rock School District (LRSD) unitary. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 2007 WL 624054 (E.D.Ark.2007) (hereinafter referred to as LRSD III). We affirm.

I.

On September 13, 2002, the district court granted LRSD partial unitary status. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 237 F.Supp.2d 988, 1077 (E.D.Ark.2002). That order required LRSD to assess and evaluate the key programs set forth in § 2.7 of the Revised Desegregation and Education Plan (Revised Plan) that the district court had approved in 1998.

On June 30, 2004, the district court entered an order denying LRSD's request for a declaration of unitary status. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 470 F.Supp.2d 963 (E.D.Ark.2004).

We affirmed that decision in Little Rock School District v. North Little Rock, School District, 451 F.3d 528 (8th Cir. 2006). In recounting the lengthy history of this case, id. at 529, we questioned what we perceived to be the additional requirements that the district court had imposed in its 2002 Compliance Order, id. at 536, and what we characterized as the even more heightened requirements imposed by the district court in its 2004 order, the details of which we set forth at some length. Id. at 536-40.² Despite our concerns, we concluded that the district court had not clearly erred in finding that LRSD had failed to demonstrate substantial compliance with the Revised Plan. Id. at 540. In the course of our opinion, we commented on how this litigation had been complicated by the shifting terminology employed by the parties and the district court, especially with respect to the terms "assessment" and "evaluation" as used in determining whether LRSD had satisfied the requirements of § 2.7.1 of the Revised Plan. Id. at 531. We concluded our analysis by saying that in light of LRSD's representation that it was complying with the new compliance remedy,

[w]e are unwilling at this time to say that those heightened requirements surpass beyond all measure the requirements to which LRSD committed itself when it entered into the 1989 Settlement. Suffice it to say that there will be time enough for us to revisit the requirements of the 2004 order if this case should once again come before us.

Id. at 540.

Although concurring in our affirmance of the district court's finding that LRSD had not substantially complied with § 2.7.1 of the Revised Plan as embodied in the 2002 Remedy, Judge Gruender dissented from our judgment because of his belief that the district court had abused its discretion in imposing the 2004 Remedy. Id. at 541 (Gruender, J., concurring in part and dissenting in part).

Specifically, Judge Gruender concluded that the district court had abused its discretion in substituting "a new set of rigorous evaluations not agreed to by the parties," id. at 542, in ordering a new team for LRSD's Program Review and Evaluation Department, and in introducing the requirement that LRSD's "program assessment process must be deeply embedded as a permanent part of LRSD's curriculum and instruction program." Id. (quoting the district court's 2004 order). Judge Gruender characterized the "deeply embedded" requirement as being "impossibly subjective" and as having been "created out of whole cloth." Id. at 543. He would have supplanted that standard by requiring the district court on remand to analyze the evaluations called for by the 2004 Remedy under the standards set forth in the 2002 Remedy. Id.

II.

On remand from our 2006 decision, the district court conducted a three-day evidentiary status hearing in January 2007. LRSD called fifteen witnesses, who testified about LRSD's substantial compliance with § 2.7.1 of the Revised Plan. Joshua called nineteen witnesses, who testified that LRSD needed to do more still in order to comply with its obligations. As noted by the district court, the parties introduced into evidence thousands of pages of exhibits.

Before reaching the merits of the question whether LRSD had substantially complied with the requirements of § 2.7.1, the district court explained at some length how it believed both the majority and the dissent in our 2006 decision had "erroneously construed § 2.7.1 as requiring LRSD to perform program only assessments—not evaluation—of the § 2.7 programs." LRSD III, 2007 WL 624054, at *6, n. 38. The district court disagreed with our suggestion that this litigation had been complicated by what we characterized as the shifting terminology used by the parties and the district court with respect to "assessment," "evaluation," and other terms. Id. at *6.

In contrast to its disagreement with our characterization of what its earlier orders had required, the district court agreed with Judge Gruender's conclusion that the requirement that LRSD deeply embed its program assessment process as a part of its curriculum and instruction program imposed a new contractual obligation that was not contained in § 2.7.1 of the Revised Plan, saying, "Upon mature reflection, I wholeheartedly agree with the dissent's criticism of my decision to require LRSD to `deeply embed' the program assessment process as a permanent part of its curriculum and instruction program." Id. at *7. The district court then acknowledged that it should have adopted the "good faith" compliance standard imposed under § 2.1 rather than crafting a "deeply embedded" compliance standard out of whole cloth:

The language I should have used in section B, rather than the "deeply embedded" standard, is as follows: LRSD must act in good faith (as explicitly required by § 2.1 of the Revised Plan) to implement the program assessment process required by § 2.7.1 of the Revised Plan. In the Findings of Fact, I will use this "good faith" compliance standard to determine whether LRSD has substantially complied with section B of the 2004 Compliance Remedy, rather than the "deeply embedded" compliance standard contained in the June 2004 Decision.

Id. at * 8 (footnote omitted).

The district court conducted a painstaking review of the evidence and testimony submitted at the January 2007 unitary status hearing and then entered detailed findings that LRSD had substantially complied with each of the requirements set forth in the 2004 Compliance Remedy and all of the obligations contained in the Revised Plan. Accordingly, the district court ordered that LRSD be declared completely unitary in all respects of its operations and released it from all further supervision and monitoring from the court, the Office of Desegregation Monitoring, and Joshua.

III.

A.

We conclude that there is no need for us to engage in a lengthy, detailed recounting of the evidence submitted at the January 2007 unitary status hearing. Suffice it to say that, having carefully reviewed the testimony and evidence presented by the witnesses for both parties, we are in complete agreement with the district court's analysis of that testimony and evidence and conclude that the district court did not clearly err in finding that LRSD had substantially complied with all of the obligations imposed upon it by the 2004 Compliance Remedy and the Revised Plan. During the course of our review, we found ourselves in agreement with the district court's observations, as set forth in greater detail below, that Joshua failed to present any evidence in support of its challenges to the sufficiency of LRSD's compliance with several of the requirements of the 2004 Compliance Remedy.

B.

There remains for decision Joshua's contention that by receding from the "deeply embedded" program assessment requirement that it imposed in its 2004 compliance remedy, the district court departed from the law of the case established in that order and affirmed by our 2006 decision. Joshua complains that it was never given notice or an opportunity to contest the changed compliance standard.

As we...