Little Rock School v. North Little Rock, 04-2923.

451 F.3d 528

LITTLE ROCK SCHOOL DISTRICT, Plaintiff/Appellant, Lorene Joshua; Leslie Joshua; Stacy Joshua; Wayne Joshua, Intervenor Plaintiffs/Appellees, 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, also known as Bill Hamilton, Individually and in his Official Capacity as a Member of the Board of Education of the Little Rock School District, A Public Body; 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.

No. 04-2923.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2005.

Filed: June 26, 2006.

Christopher J. Heller, argued, Little Rock, AR, for appellant.

Robert Pressman, argued, Lexington, MA (John W. Walker and Norman Chachkin, on the brief), for appellee.

Before WOLLMAN, HEANEY, and GRUENDER, Circuit Judges.

WOLLMAN, Circuit Judge.

The Little Rock School District (LRSD) appeals from the district court's¹ denial of its request for unitary status. We affirm.

I.

LRSD has been involved in federal desegregation litigation since 1956; the present phase of this case commenced in 1982. See Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404 (8th Cir.1985) (en banc); see also Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 921 F.2d 1371, 1376-83 (8th Cir.1990) (chronicling litigation history); Polly J. Price, The Little Rock School Desegregation Cases in Richard Arnold's Court, 58 Ark. L.Rev. 611, 622-47 (2005). In 1989, the district court approved an interdistrict settlement plan (1989 Settlement), which specified that the district court would supervise the remedial desegregation efforts of LRSD and two neighboring school districts. We ordered the creation of the Office of Desegregation Monitoring (ODM) to assist the district court in its supervision. See Little Rock Sch. Dist. v. Pulaski County, 921 F.2d at 1388, 1394.

By 1996, it had become apparent to the parties and the district court that LRSD would be unable to meet the terms of the 1989 Settlement. At the suggestion of the district court, LRSD and Lorene Joshua (Joshua), the class representative for all African-American students enrolled in LRSD and the two neighboring districts, entered into negotiations to modify LRSD's obligations. The fruit of these negotiations was the Revised Desegregation and Education Plan (Revised Plan), which the district court approved in 1998. It was agreed that if LRSD substantially complied with the terms of the Revised Plan, it would be declared unitary at the conclusion of the 2000-2001 school year. The Revised Plan required Joshua to submit any unresolved compliance issues to the ODM for facilitation of an agreement. Revised Plan § 8.2.4. If the ODM could not resolve the issue "after good faith attempts at facilitation," Joshua could seek resolution of the issue with the district court. Id. § 8.2.5.

In 2002, the district court granted LRSD partial unitary status, finding that it had complied with all but section 2.7.1 of the Revised Plan. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 237 F.Supp.2d 988, 1089 (E.D.Ark.2002). Section 2.7.1 provided that:

LRSD shall assess the academic programs implemented pursuant to Section 2.7 after each year in order to determine the effectiveness of the academic programs in improving African-American achievement. If this assessment reveals that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program.

Compliance Plan, Oct. 10, 2002, at 1 (footnote omitted). The district court imposed a compliance remedy (2002 Remedy) designed to bring LRSD into substantial compliance with section 2.7.1. Id. at 1087-88. On appeal by Joshua from the district court's unitary-status ruling, we affirmed. Little Rock Sch. Dist. v. Armstrong, 359 F.3d 957 (8th Cir.2004).

On March 15, 2004, following what it believed was its substantial compliance with section 2.7.1 and the 2002 Remedy, LRSD asked to be declared unitary. Joshua opposed the request. On June 30, 2004, the district court concluded that LRSD had not substantially complied with its obligations, denied unitary status, and imposed a new compliance remedy (2004 Remedy). It is from this judgment that LRSD now appeals.

II.

Although this case traces its roots to federal desegregation efforts, the instant appeal presents no constitutional issues. The constitutional requirements for unitary status are set forth in Green v. County School Board, 391 U.S. 430, 435-38, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), which held that a school district may be declared unitary and lacking racial discrimination based on satisfactory performance in five areas of a school district's operations: (1) student assignment; (2) faculty and staff assignment; (3) transportation; (4) extracurricular activities; and (5) facilities. LRSD has met these requirements. See 237 F.Supp.2d at 1089 (declaring LRSD "partially unitary with regard to all aspects of its operations, because it has substantially complied with all sections of the Revised Plan, save for those obligations contained in § 2.7.1"). As the district court noted in 2002, the Revised Plan "included other desegregation obligations that went beyond Green's constitutional floor for a school district to become unitary." Id. at 1032.

Section 2.7.1 of the Revised Plan refers to section 2.7, which required LRSD to "implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan." The impetus for section 2.7 is colloquially referred to as the "achievement gap" between minority students and white students in the public school systems. For section 2.7.1 to meet the constitutional threshold of a desegregation remedy, the achievement gap that it was designed to remedy would have to "directly address and relate to the constitutional violation itself." Missouri v. Jenkins, 515 U.S. 70, 88, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); see also Bd. of Educ. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) ("The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities."). As the district court observed in 2002:

[N]o court has ever determined generally, or with the specificity required in [Jenkins], what portion, if any, of the minority student achievement gap in LRSD is causally linked as a vestige of de jure segregation. Furthermore, Joshua has failed to introduce any evidence to establish that: (1) the achievement gap is causally linked to the system of de jure segregation which existed in LRSD decades earlier; and (2) the portion of the achievement gap which is attributable to de jure segregation, after excluding all of the socioeconomic factors that also have contributed to that gap.

237 F.Supp.2d at 1040. Cf. People Who Care v. Rockford Bd. of Educ., 246 F.3d 1073, 1076 (7th Cir.2001) ("[I]t is obvious that other factors besides discrimination contribute to unequal educational attainment, such as poverty, parents' education and employment, family size, parental attitudes and behavior, prenatal, neonatal, and child health care, peer-group pressures, and ethnic culture."). Accordingly, it is unclear whether LRSD's efforts to remedy the achievement gap are constitutionally compelled. We need not determine that issue, however, because LRSD's obligations under section 2.7.1 are clearly contractual matters. Thus, we examine LRSD's compliance under ordinary rules of contract interpretation.

LRSD's obligations under section 2.7.1 therefore arise as a matter of contract, not constitutional law, and thus we examine LRSD's compliance under ordinary rules of contract interpretation. United States v. Knote, 29 F.3d 1297, 1299 (8th Cir.1994). We review the district court's factual findings for clear error, Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 83 F.3d 1013, 1017 (8th Cir.1996), and its modification of a consent decree for an abuse of discretion. McDonald v. Armontrout, 908 F.2d 388, 390 (8th Cir.1990). We review de novo the district court's interpretation of the terms of the Revised Plan. Armstrong, 359 F.3d at 965.

III.

This litigation has been complicated by the shifting terminology employed by LRSD, Joshua, and the district court. Specifically, efforts to resolve this case since the Revised Plan took effect in 1998 have been marked by confusion over four terms: (1) assessment; (2) evaluation; (3) program; and (4) key program. The plain language of section 2.7.1 of the Revised Plan, quoted in Part I, supra, required LRSD to assess academic programs implemented pursuant to section 2.7, including but not limited to programs implemented under section 5.

A.

On March 15, 2000, LRSD submitted an Interim Compliance Report that...