An attorney in a long-running school desegregation lawsuit argued to a federal judge Friday that the Pulaski County Special School District was never found guilty of constitutional violations in terms of student achievement and discipline practices.
That raises questions about whether the Pulaski County Special and Jacksonville/North Pulaski districts must prove they have remedied racial gaps in student achievement and discipline, Scott Richardson said.
"What is it that we are trying to fix here?" Richardson asked. "The case law is quite clear: What we are required to fix, and what gives the Court jurisdiction, is a violation of the Constitution."
He said he has asked to no avail for court findings of constitutional violations by the district on achievement and discipline, dating back to the Pulaski County Special district's first desegregation case in the late 1960s.
Without constitutional violations, "we have been chasing a ghost," he said.
[DOCUMENT: Desegregation Plan 2000 » arkansasonline.com/81plan/]
Robert Pressman, an attorney for black students known as the McClendon intervenors in the case, responded that the requirements for addressing racial disparities in student achievement and in student discipline are born out of "the full picture of harm" created by once legally required segregated schools.
Richardson and Pressman made their arguments to U.S. Chief District Judge D. Price Marshall Jr. at the conclusion of a three-week hearing on whether the Pulaski County district has met the requirements of its desegregation Plan 2000 and related documents, and is eligible to be declared unitary and released from any further federal monitoring of its operations.
Attorneys for the district have argued throughout the hearing that the 12,000-student system has substantially complied with its obligations on student achievement, student discipline, the condition of facilities and the self-monitoring of desegregation efforts.
[DOCUMENT: Outline of proposed education plan » arkansasonline.com/81outline/]
Attorneys for the McClendon intervenors have, on the other hand, argued throughout the case and in closing arguments Friday that the district has not fulfilled the requirements and should not be released from court monitoring.
Richardson represents the Jacksonville/North Pulaski School District, which detached from the Pulaski County Special district in 2016 but is required to meet the same desegregation obligations as the Pulaski County Special district as a condition of the detachment.
Marshall has scheduled an October hearing on unitary status for the Jacksonville/North Pulaski district.
On Friday, the judge did not give any indication on when he might issue a decision in the county district's case. He does have plans to tour some of the campuses at the center of a dispute on equal building conditions. And he did say he has been delving into the history of the case that started in 1982 as a lawsuit filed by the Little Rock School District against its neighboring school systems and state officials. Five judges have overseen the case, to date.
Richardson said the Pulaski County district's original desegregation case, the Zinnamon case, centered on the lack of national accreditation ratings for Black segregated schools. The case was merged into the current case in the 1980s and became what he called a "good schools case."
"Over time we lost the origins of the case and lost focus on constitutional violations and shifted the focus to just a good schools case," he said. "You have well-intentioned school district and government officials who agree to things that aren't really connected to constitutional violations such as academics and discipline in the PCSSD."
Marshall questioned whether it makes a difference in law that attorneys for the school districts and the class of Black students who are the intervenors agreed to the Plan 2000 and the court endorsed it. The judge said that it has been the practice in the case for the districts to have the burden of showing substantial compliance and good faith.
"No court as best I can tell in our case -- the long history of our case -- has engaged with that and agreed in terms of the county district," Marshall said about the current case that is 37 years old and at its heart is over the equal-protection clause of the 14th Amendment, which prohibits intentional discrimination.
"Does it matter that the parties agreed to chase the ghost and the parties endorsed it," Marshall asked.
"No," Richardson said. "I don't think it does matter. In order to have that agreement it needed to be tied to a constitutional violation," he said, adding later that it shouldn't be a burden to districts to be responsible for remedies when there was never a constitutional violation.
Marshall asked whether parts of the Plan 2000 agreement that aren't rooted to a constitutional violation should be treated as a contract between the parties. Richardson questioned whether the districts can be tied to desires of previous school district administrators.
"I don't think so," he said.
Pressman in his response to Richardson's arguments said that the Pulaski County Special district didn't start racially desegregating its schools until the early 1970s, after the U.S. Supreme Court outlawed segregation in 1954.
"That reinforced the idea that separation was a good thing," he said about the district's desegregation steps. By the 1980s, disparate discipline, racial achievement and school construction were evident, he said.
Parties in the lawsuit adopted provisions in 1992 desegregation plans to address "these kinds of practices that flowed from the dual system and longtime discrimination," he said.
Over time, the federal court saw that 1992 plan as unworkable and that elimination of racial disparities might not occur, Pressman said. Plan 2000 and accompanying education plan were negotiated by the parties and approved by U.S. District Judge Susan Webber Wright in February 2000.
"If you see the full history here ... you can see that both the discipline and achievement remedies are flowing from violations," he said.
The Pulaski County Special district asked Wright to modify an initial consent decree with Plan 2000, Pressman said, adding that it is settled law that a party asking for a modification has the burden of proving that it has complied with its terms.
He also said there is no reference to a contract in Pulaski County Special district documents or in Wright's orders.
Also Friday, Devin Bates, an attorney for the Pulaski County Special district, and Austin Porter Jr., lead counselor for the McClendon intervenors, recapped for the judge the testimony from the 14-day hearing and what they each thought the judge should draw from it.