Appeal of Little Rock School Dist., 1

Page 253

949 F.2d 253

71 Ed. Law Rep. 396

Appeal of LITTLE ROCK SCHOOL DISTRICT, Pulaski County

Special School District No. 1, North Little Rock

School District, and Mrs. Lorene Joshua.

Nos. 91-2640, 91-2648, 91-2655 and 91-2683.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 4, 1991.

Decided Nov. 14, 1991.

Christopher Heller, M. Samuel Jones III, Stephen W. Jones, John W. Walker, Little Rock, Ark., argued, Wiley Branton, Little Rock, Ark. and Julius Chambers and Norman Chachkin, New York City, on the brief, for appellants.

There were no appellees in this case.

Before ARNOLD, Circuit Judge, HEANEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

ARNOLD, Circuit Judge.

On December 12, 1990, we approved a comprehensive settlement of the Pulaski County, Arkansas, school-desegregation case. Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371 (8th Cir.1990). We recognized, however, that the approved plans, which we shall call the 1989 plan or plans, would need some modification because of the passage of time. We remanded the case to the District Court with directions to adopt the plans with any necessary transitional changes. We also stated that the parties are "free, by agreement, to modify the settlement plans by incorporating in them one or more provisions of the Tri-District Plan, subject, of course, to the approval of the District Court." 921 F.2d at 1393 n. 15.

On remand the three school districts involved, Little Rock School District (LRSD), Pulaski County Special School District (PCSSD), and North Little Rock School District (NLRSD), and the Joshua Intervenors, representing the plaintiff class, met to discuss what modifications of the 1989 plan would be necessary or appropriate. After extensive negotiations, the parties agreed to a long list of modifications, and submitted them to the District Court for approval. The parties refer to their settlement as thus modified as the "May 1991 Plan," and we shall adopt the same terminology.

The District Court rejected the proposed modifications. In its view, they went beyond any authority conferred by this Court's 1990 opinion. That opinion, as the District Court read it, authorized only two sorts of changes: the incorporation of provisions of the Tri-District Plan, and an adjustment of details necessary to make a smooth transition between the 1990-91 school year, which had been governed by an interim order of this Court dated July 2, 1990, see 907 F.2d 76, and the 1991-92 school year. The District Court considered all other changes out of bounds under this Court's mandate, whether or not these changes had been agreed to by all parties concerned.

The Court directed the parties to submit a new modified plan in compliance with its view of this Court's mandate. "Substantive modifications to the plans," it said, "shall be only for the purpose of incorporating useful features of the Tri-District Plan." Little Rock School District v. Pulaski County Special School District No. 1, 769 F.Supp. 1483, 1489 (E.D.Ark., 1991). The Court explained: "Nearly all the [proposed] ... revisions ... fall outside the narrow realm of modifications and adjustments deemed permissible by the Eighth Circuit. Thus, this Court cannot approve them. This is not to say that all the proposed changes are without merit, or that they all would negatively affect desegregation in the three districts. It is simply a matter of compliance with the language of the Eighth Circuit's order." Id. at 1489.

The parties then moved for reconsideration. They emphasized that all the changes for which approval was being sought had been agreed to by all parties concerned. They took the position that the District Court should approve any modifications thus agreed to, provided that they met the standards set out in this Court's opinion for judicial review of the original, 1989, settlement. So long as the agreed changes did not render the plan plainly unconstitutional on its face, were not manifestly unworkable, and were not unfair to class members, see 921 F.2d at 1383, they should be approved, the parties said. The Court denied the motion for reconsideration and summarized its position as follows:

The Court sees the Eighth Circuit's approval of the plans as akin to establishing a benchmark; we now have [a] distinct reference point, a sure guide for ending this dispute and getting the parties out of court. Some revisions to the settlement plans will be needed initially to update the plans and to effect a smooth transition from the Tri-District Plan; thereafter, other modifications may be necessary in response to changing conditions and unforeseen developments. However, such changes should be minimal and occur at the margins, rather than at the core of the plans.

Little Rock School District v. Pulaski County Special School District No. 1, 769 F.Supp. 1491 (E.D.Ark., 1991).

From these orders disapproving their proposed modifications, the parties have now appealed. All four parties involved, LRSD, PCSSD, NLRSD, and the Joshua Intervenors, take the position that the District Court has confined them within limits that are too narrow, and that all of their proposed changes, being constitutional, workable, and fair, should have been approved. They ask us to reverse the orders of the District Court and remand the case with directions to approve all of the parties' modifications.

I.

There is much in the District Court's opinions with which we agree. The 1989 settlement which we approved last year should indeed be a benchmark for the future path of this case. The parties are not authorized to modify it at will. Further, we agree, for the most part, that any changes approved should be concerned only with the details of the plan, affecting it only at the margin, so to speak. We wish to dispel, in particular, any notion that an asserted lack of funds on the part of any of the three school districts would justify a reduction in their commitment to desegregation represented in the 1989 plan, even if such a reduction were agreed to by the Joshua Intervenors, an eventuality which, in any event, seems to us most unlikely. The desegregation obligations undertaken in the 1989 plan are solemn and binding commitments. The essence and core of that plan should not be disturbed.

On the other hand, we think the District Court was too strict with itself. We did not intend, for example, to limit changes in detail to matters that are merely transitional, or to the selection of certain provisions from the Tri-District Plan. (We accept responsibility for any lack of clarity in our December 1990 opinion on this point.) If a question is truly one only of detail, not affecting the major substantive commitments to desegregation, the District Court has the authority to consider it. Some such changes, for example, as the District Court noted, may have merit, either because they advance desegregation, or for other reasons. Even changes that go beyond the level of detail, moreover, could be approved, but only if the parties affirmatively establish good reasons (not including the lack of funds) for them.

It may be helpful for us to state those elements of the 1989 plan that we consider crucial, and with respect to which no retreat should be approved. They are as follows: (1) double funding for students attending the incentive (virtually all-black) schools; (2) operation of the agreed number of magnet schools according to the agreed timetable; (3) operation of the agreed number of interdistrict schools according to the agreed timetable; (4) intradistrict desegregation of PCSSD according to the agreed timetable; (5) the agreed effort to eliminate achievement disparity between the races; (6) the agreed elements of early-childhood education, at least in the incentive schools; and (7) appropriate involvement of parents.

For purposes of illustration, we will discuss a number of the proposed modifications, indicating which of them seem to us to concern mere details, and which of them, on the other hand, would require substantive justification. Items we consider to involve details include deciding whether Russian will be taught at Parkview; failing to include the 144-page appendix in the revised PCSSD May 1991 Plan; changing the plan's language with respect to a possible interdistrict school in Chenal Valley; changing the process to decide whether King Elementary School will be a Montessori school; and eliminating Explorer memberships for students at incentive schools. ¹ In contrast, changes we consider to be significant, requiring justification, include reducing the number of instructional aides in the incentive schools from one per classroom to two aides for every three classrooms; eliminating incentive-school themes; and eliminating a full-time nurse at each school. Again, we emphasize that we do not mean to imply that these changes are not permissible. Rather, changes of this kind may be approved if the District Court finds they are justified.

One other kind of change proposed by the parties deserves our attention: deleting requirements of the plan because the parties agree the requirements have been met. An example of this is LRSD's obligation under the 1989 plan to hire two parent recruiters to conduct recruitment activities for the incentive schools. In their "Stipulation Regarding Little Rock School District and Interdistrict Plan Modifications," filed with the District Court on July 25, 1991, the parties stated that they deleted the requirement to hire the recruiters because the recruiters were hired in 1989. J.A. 105. We agree with the District Court's statements on this topic: "Present performance does not excuse future obligation. What if the district stops doing what it promised? Without such commitments remaining readily identifiable in the plan, the Court cannot monitor [the] district's compliance with the plan." Little Rock School District v. Pulaski County Special School...