LITTLE ROCK — U.S. District Judge D. Price Marshall Jr. on Thursday ruled that the establishment of nearly a dozen state-approved charter schools in Pulaski County did not violate a 1989 desegregation settlement terms between the state and the three Pulaski County school districts.

In a separate order, also issued Thursday, the judge set up a process for a court hearing on the state’s 2012 request to be released from that 1989 agreement. The settlement obligates the state to pay annual desegregation aid to the Little Rock, North Little Rock and Pulaski County Special school districts.

Thursday’s decisions are the latest developments in the 30-year-old Pulaski County school desegregation case. State desegregation aid has grown to about $70 million a year and now totals more than $1 billion over more than two decades as a result of the 1989 agreement in the case.

Unless an appeal overturns the decision, Marshall’s 30-page order on the charter schools preserves existing charter schools in Pulaski County and widens the door for new ones.

The judge concluded that the 1989 desegregation settlement did not address charter schools, that the charter-school enrollment in the county has had minimal effect on student participation in magnet-school and interdistrict student transfer programs, and that the Little Rock district and the Joshua intervenors, who represent black students, waited too long to make their 2010 challenge to the charter schools - the first of which opened in 2001.

“[N]o reasonable fact finder could conclude that the State is in material breach of the parties’ 1989 Settlement Agreement as to open-enrollment charter schools in Pulaski County,” Marshall wrote in summing up his decision.

The charter-school order came in response to requests by the Little Rock School District and the Joshua intervenors that the judge enforce the terms of the 1989 agreement against the state.

The district and intervenors argued to the judge that the independently run, publicly funded charter schools hindered long-standing desegregation efforts in the Pulaski County districts in violation of the state’s commitment in the 1989 agreement to aid desegregation. The districts’ desegregation efforts have centered on the operation of six Little Rock magnet schools and majority-to-minority interdistrict student transfer program. The transfer program enables students to move from a district where their race is in the majority to one where they will be in the minority.

The Arkansas attorney general’s office and an attorney for the charter schools defended the state Board of Education’s approval of the charter schools in Pulaski County. The charter schools had been granted intervenor status in the case.

Chris Heller, who represents the Little Rock district, said Thursday that he was disappointed that the judge had decided against holding a full trial to take testimony on the issues. He said he anticipates meeting with the district’s superintendent and the Little Rock School Board next week to discuss the case and decide how to proceed.

Any appeal of Marshall’s order by the school district or other parties would have to be filed within 30 days to the 8th U.S. Circuit Court of Appeals at St. Louis.

Others were pleased with the court decision.

“It’s great news,” John Bacon, chief executive officer of the three-school e-Stem Charter Schools Inc. in downtown Little Rock, said about the decision.

“It validates the efforts we are trying to make right now to provide options for children in our community. It will be interesting to see the reaction from groups that may have been hesitant to look at our area as fertile ground for starting charters.”

Bacon called the legal challenge “a weight on top of us” that has been removed. He said his 5-year-old school system has no immediate plans for expansion but is considering opportunities in southwest Little Rock.

Attorney General Dustin McDaniel welcomed Marshall’s decision in an e-mail statement.

“Today’s order affirms the State’s position that we have responsibly enacted and implemented laws that both create educational choices and adhere to the 1989 settlement agreement,” McDaniel said. “The State has continued to meet its commitment to provide a quality education to all of the students in Pulaski County.”

Jess Askew III, a Little Rock attorney who represented the Pulaski County charter-school intervenors, said the charter-school operators and families appreciated the thorough work and analysis from the judge.

“It is important that the charter schools won on three separate points, which means the Little Rock School District would have to clear three separate hurdles if it wants to try to appeal,” Askew said.

Unless there is an appeal, the charter schools are no longer parties in the desegregation case. Marshall thanked the charter school intervenors and their counsel for helpful participation and discharged them.

Scott Smith, executive director of the Arkansas Public School Resource Center, a nonprofit organization that offers technical support to charter schools and rural school districts, said the Little Rock district’s claims “have been a cloud hanging over the charter schools for a while.

“We are pleased to see the court remove that cloud,” Smith said, adding that the timing of the order was particularly good because the legislative session began this week and some lawmakers have talked about expanding charter-school opportunities in the state.

“It validates the work and the merits of the charter schools,” Smith said. “We’re also pleased to have this with [Arkansas Board of Education] renewal considerations coming around the corner for several of the charter schools in Pulaski County.”

Marshall said in the order that it was his job to determine whether the state had violated the 1989 settlement agreement, which he called a contract, by implementing the state’s Charter School Act in Pulaski County.

“Reasonable people of good will disagree about the wisdom and efficacy of charter schools. Those issues are not before this Court,” Marshall said, adding later that the law of the case required him to apply the terms of the contract or the settlement to the facts that have developed since its creation.

He noted that the settlement predates the existence of charter-school law in the state and so does not mention charter schools.

The judge discounted the Little Rock district’s argument that a 2003 court decision against forming a separate Jacksonville school district apart from the Pulaski County Special district applies to the charter school issue. In that case, the Pulaski County district argued that the state’s consent to a new Jacksonville district would have resulted in boundary changes and the loss of students, hindering desegregation and violating the 1989 settlement.

Marshall noted that language in the settlement specifically protects the geography of the Pulaski County Special and North Little Rock districts but does not apply to the Little Rock district.

“The factual analogy has a surface appeal,” the judge wrote. “The proposed Jacksonville district would have served about 6,000 former PCSSD students, while the open-enrollment charters currently serve about 4,400 students in Pulaski County. But the analogy fails on scrutiny. These charters have not removed any land from LRSD. They have not taken over any LRSD buildings or infrastructure. They have not altered LRSD’s tax base.”

Marshall noted that the parties agreed in the 1989 settlement that the Little Rock district would have no perpetual monopoly on students residing within the district because the district - which had earlier proposed consolidation of all three districts - was still hoping to expand its boundaries.

The judge didn’t accept the Little Rock district’s arguments that the charter schools are similar to and compete directly with the Little Rock district’s magnet schools.

“They are somewhat similar: both kinds of schools draw students from across district lines. The similarity ends there,” he said. “In their essence, these are different kinds of schools. Open-enrollment charter schools are, as their name says, open to all students,” regardless of race or residence.

Magnet schools are open to students in the three Pulaski County school districts and their enrollments - which are to be 50-50 ratio of black to white - are allocated by fixed percentages of students from each district.

If the district and Joshua intervenors believed the implementation of charter schools were competing with and undermining the magnet schools and interdistrict student transfers in violation of the settlement, they should have spoken long before 2010, the judge wrote.

The judge called the effect of the charter schools on the enrollment in magnet and interdistrict transfer programs “marginal, not material.”

Between the 2005-06 and 2010-11 school years, 324 students transferred from magnets to charter schools, and 109 students transferred from charters to magnets. The net loss by the magnets was 215 students, or 36 students a year.

He said the numbers neutralized arguments that the charter schools were “cherry-picking” students from the district or that the charters were “white flight” schools.

The judge said that the state Charter School Act requires the state Education Board to consider the potential desegregation impact of proposed charter schools. The state’s compliance with the requirement, if it is in dispute, would be a matter for state courts, he said.

In a second order Thursday, the judge addressed the state’s 2012 motion to be released from the 1989 agreement and its financial obligations.

He denied the Little Rock district’s motion to immediately dismiss the state’s request. He said changed circumstances in the districts, including the fact that the North Little Rock and Little Rock districts are unitary and released from court supervision, warrant an evidentiary hearing on the motion for release.

McDaniel said Thursday that he was pleased that the judge set up a process for deciding the state’s motion to be released from the settlement. McDaniel said the timeline for a hearing offers the opportunity for “hopefully ending this long legacy of litigation.”

The judge has directed the Little Rock district to respond to the state’s motion to withdraw by Feb. 1 and that all the parties in the case submit to him by Feb. 22 proposed dates for completing discovery, filing legal briefs and holding an evidentiary hearing.

“Since taking office, I have committed myself and our staff to ending the courtroom battles and payments that pit the state and the school districts in Pulaski County as adversaries in court, rather than partners in education. That commitment continues,” McDaniel said.

Front Section, Pages 1 on 01/18/2013