LITTLE ROCK — A federal judge has postponed the dates for court hearings on whether the North Little Rock and Pulaski County Special school districts have met their desegregation obligations.
In his decision Monday, U.S. District Judge Brian Miller changed the starting dates in response to concerns from lawyers for black students known as the Joshua intervenors who wanted more time to review thousands of pages of documents.
The Arkansas attorney general’s office objected.
North Little Rock’s request to be declared unitary and released from years of court supervision will be heard Jan. 25 - not Jan. 11.
The Pulaski County Special School District’s hearing on a similar request is rescheduled from Jan. 25 to Feb. 22.
The two districts, along with the Little Rock School District, are parties in a 27-year-old federal school desegregation lawsuit. The Little Rock district was declared unitary in February 2007. The North Little Rock and Pulaski County districts filed petitions for unitary status later that year.
If they are declared unitary, desegregation efforts in the two districts would no longer be scrutinized and reported by the federal Office of Desegregation Monitoring nor would the districts need court approval for changes such as construction of new schools.
Additionally, declarations of unitary status could clear the way for the state to ask the court for release from a 1989 settlement in which the state committed to provide extra funding to the three districts for desegregation purposes.
That desegregation aid now amounts to almost $70 million a year to the districts and, at the end of this year, it will total about $980 million, Assistant Attorney General Scott Richardson told the judge Monday.
In Miller’s telephone conference with attorneys for each of the three Pulaski County school districts, the state, the Joshua intervenors and the Knight intervenors, who represent teachers in the three districts, Miller said he was reluctant to change the dates.
Case Timeline
• Important dates in the desegregation casehttp://showtime.ark…">• Read the opinionhttp://showtime.ark…"> • Wilson's recusal letter
“I will tell everybody here that initially when I received a phone call [seeking a delay] my thought was ‘absolutely not,’” Miller said. “These cases have been hanging on for a number of years and there needs to be a ruling one way or another on them.”
But he said he was persuaded to agree to short delays after hearing Robert Pressman of Lexington, Mass., and John Walker of Little Rock, attorneys for the Joshua intervenors, say that they had received more than 17,000 pages of documents from the two school districts and had had difficulty in finding or affording a desegregation expert to assist them in preparing for the cases.
“One of the problems is that while we are in court with North Little Rock, Pulaski County will have the advantage of preparing,” Walker told Miller about the two January court dates.
“It would be a real hardship on us, and it will be prejudicial to the class [of all black students] because we won’t be fully and adequately prepared to go from one hearing to the other.”
Richardson told Miller that the state is “very anxious” to see the cases move forward and objected to any delays. That’s not only because of the state payments, he said, but also because the case “displaces the state’s authority over education” in Pulaski County and across the state.
The Joshua intervenors, who are obligated to monitor desegregation compliance in the districts, should have been preparing for trial over the past two years, Richardson said.
The state provided desegregation evaluation reports from state-funded experts to the Joshua intervenors, Richardson said, and offered to make the experts available to Joshua attorneys for questioning.
The state employed experts are David J. Armor, a professor of public policy in the School of Public Policy at George Mason University at Fairfax, Va., and Christine Rossell, professor of political science at Boston University.
“We have waited two years for these hearings,” Richardson said. “And there have been over 50 years of litigation regarding desegregation in these districts.
“The students in these districts and the people of Arkansas are entitled to know whether segregation remains a part of the curriculum in these two districts. We think the answer to that will be ‘no,’ but we are entitled to a ruling on that and a timely one.”
Richardson also argued that any delay of the hearings will delay final decisions from the judge, affecting the ability of the state to recover control of the education system and stop the money that the state must provide yearly in the districts. The new 2010-11 fiscal year begins July 1, 2010.
But Chris Heller, an attorney for the Little Rock School District, advised Miller that every significant decision in the case has been appealed to the 8th U.S. Circuit Court of Appeals at St. Louis and that the timeline suggested by Richardson to end or at least begin phasing out state funding isn’t going to work.
“I can’t imagine that unitary decisions, whichever way they go, would not be appealed,” Heller told Miller.
“In my mind it is more important to get it right, especially when Joshua raises issues concerning the effect on the class and the inability to prepare on this schedule.
“If we are talking about a couple of weeks of delay to make sure there aren’t any issues in the 8th Circuit about whether the class was adequately protected or whether the schedule somehow favored the school districts, that would be time well spent.”
Walker urged the judge to define the relative role of each of the parties in the upcoming court hearings. He argued that the state is causing the districts to pursue unitary status “on its timetable because, rather than have the children educated, it wants to save money.”
“We have a serious concern about how this hearing would be handled,” Walker said.
“The state is not a party normally allowed - at least in past proceedings - to participate other than to sit at the table [as an observer] because it has not raised any particular issues.
“The state is the one that hired the expert witnesses and controls them. And if it has had the experts’ reports for two months, they have not shared them.”
He urged that the state should be designated as an intervening party in the upcoming hearings rather than be allowed to “direct from the side.”
Walker also said the Joshua intervenors did monitor the districts after they petitioned for unitary status, but there was no reason to prepare for a hearing when the presiding judge at the time the petitions were filed, U.S. District Judge Bill Wilson Jr., had ordered a delay in any hearings.
Steve Jones, an attorney for the North Little Rock district, told Miller that his district has waited a long time for unitary status and is anxious to avoid substantial delay.
Sam Jones, an attorney for the Pulaski County district, said his client is anxious to know where it stands in regard to unitary status. He questioned whether the state experts would be available to testify at a later date.
In a brief submitted to the court Monday afternoon, Heller and Clay Fendley, another Little Rock attorney, asked that the coming hearing focus solely on the North Little Rock district’s efforts to comply with its desegregation plan and not on interdistrict matters - including the termination or modification of the 1989 settlement.
The attorney general’s office and the Little Rock district are negotiating a settlement that would phase out the annual state desegregation payments the 1989 settlement requires.
While some state lawmakers have periodically groused about the state desegregation aid to the Pulaski County districts, lawmakers have repeatedly approved the appropriation.
State officials said Monday that they expect little change in that practice.
“The Legislature will appropriate the money for the next year even if the hearings are not complete,” said Gabe Holmstrom, spokesman for Attorney General Dustin Mc-Daniel.
“However, it is unlikely that any decision by the judge after these hearings will immediately and completely eliminate the state’s obligation to pay, at least for this next fiscal year. But if it does, the state simply won’t make payment.”
Richard Weiss, director of the state Department of Finance and Administration, said “the state funding issues ... have been governed by the consent decree, and I believe that it would take a court togive the state permission to stop abruptly or unwind in a phased-out manner the current payments.”
Kim Arnall of the Fiscal Services Division of the Bureau of Legislative Research said it was his understanding that the payments will continue until either a court rules otherwise or an agreement is reached between the state and the parties, and is approved by the court.”
The next occasion for enacting an appropriation bill for the payments would be in the legislative session that is scheduled to start Feb. 8.
“At this time I’m not aware of any approved date that calls for the state payments to end,” Arnall said. “We currently have an appropriation for deseg payments included in the preliminary appropriation bill for fiscal year 2010-11 that continues the $69.8 million.”
That bill would be considered in budget hearings in the coming weeks for possible inclusion in the legislative session.
Information for this article was contributed by Bill Simmons of the Arkansas Democrat-Gazette.
Front Section, Pages 1 on 12/29/2009