Keep funding desegregation, state ordered

LITTLE ROCK — The state must continue to pay millions of dollars in desegregation aid to the three Pulaski County school systems — which use the funds for magnet schools, employee benefits and other operating expenses — as a result of a federal appeals court decision Wednesday.

“If the State wishes to obtain relief from its funding obligations, there must be a formal evidentiary hearing on the issue,” a three-judge panel of the 8th U.S. Circuit Court of Appeals at St. Louis said.

“We express no opinion on what the outcome of such a hearing should be,” the court added in the 29-page order.

The panel also concluded that the North Little Rock School District is entitled to unitary status and release from decades of federal court monitoring of its operations.

The Pulaski County Special School District, on the other hand, will remain under court supervision.

As a result, the Pulaski County Special district will be the only one of the three Pulaski County districts to remain under court supervision, although all three districts remain parties in the 29-year-old school desegregation lawsuit.

The Little Rock district was declared unitary by a federal district court in 2007, a decision affirmed by the 8th Circuit in 2009.

Wednesday’s ruling, written by U.S. Circuit Judge Raymond Gruender of St. Louis, assures, at least for now, that Little Rock’s magnet schools and a student-transfer program among the three school districts continues without the threat of lost funding.

The decision of the threejudge panel — which included Michael Melloy of Cedar Rapids, Iowa, and Roger Wollman of Sioux Falls, S.D. — follows on the heels of a Sept. 19 hear- ing on various challenges to U.S. District Judge Brian Miller’s May 19 order.

The May order called for immediately terminating all of the state desegregation aid except for funds for the majority-tominority interdistrict student transfer program.

Miller had directed the districts to show why the funding for the student-transfer program shouldn’t be ended as well.

He stepped down from the desegregation case last summer, and U.S. District Judge D. Price Marshall Jr. is now the presiding judge in the case.

The three Pulaski County districts receive as much as $70 million a year, with about $38 million going to the Little Rock district, the state’s largest with about 25,000 students.

The state pays the money as the result of a 1989 financial agreement with the state, the districts and other parties in the case.

The order to immediately end the state funding had been put on hold, or “stayed,” by the 8th Circuit at the request of the districts until the appeals court could hold the September hearing and issue a decision.

FILING MOTION IMPROPER

The 8th Circuit concluded Wednesday that the state — represented by the Arkansas attorney general’s office in support of Miller’s ruling — did not make a proper motion to the court to end the state aid. The appeals court said Miller did not hold a court hearing on the issue or prepare the typical findings of fact and conclusions of law used to support a ruling.

“The state has long made known its view that such funding will become unnecessary after all three districts are declared fully unitary,” the order said.

“However, the state has not yet moved for relief from its funding obligations, and the scheduling order for the 2010 hearings on NLRSD’s and PCSSD’s petitions for declaration of unitary status did not provide for the presentation of any evidence regarding such relief.”

Additionally, the 8th Circuit panel noted that the state participated in the 2010 court hearings on unitary status but objected when questions were raised about its role, saying that its responsibilities in the case were not the subject of the hearings.

Miller, however, released the state from the funding obligations, saying that it was necessary to avoid “an absurd outcome” in which the districts would continue to receive state funding as long as they fail to meet the desegregation requirements. In his May order, Miller called the districts “wise mules that have learned how to eat the carrot and sit down on the job.”

The 8th Circuit opinion said the judge’s frustration was understandable and his “conclusions regarding the perverse incentives created by the State’s funding may well have some merit. Nevertheless, notice and a formal hearing are required before the court terminates a constitutional violator’s desegregation obligations.”

The 8th Circuit acknowledged that the issue of curtailing state funding was raised in documents submitted to the District Court and during a short status conference of the parties and the district judge in September 2009, but that was not sufficient.

“We have rejected the notion that such other avenues may substitute for a formal evidentiary hearing,” Gruender wrote.

“[T]he briefings and status hearing referred to by the State in this case cannot be cobbled together to form an ‘adequate record,’ particularly in the absence of detailed findings by the district court.”

Representatives of the Little Rock and North Little Rock districts were pleased with the 8th Circuit order.

Steve Jones, an attorney for the North Little Rock district said the parties are back to where they started on the matter of state funding.

“Nobody has yet made an actual motion,” Jones said. “We all understand it’s the 800-pound gorilla on the horizon. Everyone knows it’s coming but at this point there is nothing before the court on which the court can act to terminate funding.”

Chris Heller, an attorney for the Little Rock district, called the order “important” and good for magnet schools. Like Jones, Heller noted that because the funding order was “vacated” by the appeals court rather than “remanded” back to the District Court, there is no existing funding issue on which a court can act to end the funding.

Heller also said that the 8th Circuit decision provides guidance on any future effort to end the state funding. The order specifically labels the state as a “constitutional violator,” he said. The order then directs that in order for a constitutional violator to be released from its obligations it must show both good faith compliance with its desegregation obligations and eliminate the vestiges of segregation caused by its unconstitutional conduct.

State leaders said they looked forward to continuing efforts to end the long-running case.

PAYMENTS NOT PERPETUAL

Attorney General Dustin McDaniel said in a prepared statement that the state “continues to move positively toward ending this litigation and taking the courts out of the classrooms of Pulaski County.”

He said the taxpayer-funded desegregation payments are not perpetual.

“Today, I renew a call to the parties in this case to come together for a meaningful discussion about what is best for the children of these school districts and the taxpayers of this state,” he said.

Asked whether he will file a motion for a hearing on stopping state payments, a spokesman for McDaniel said, “We have not made that decision at this time. As the attorney general said, he sees this as another opportunity to bring all parties together.”

Matt DeCample, a spokesman for Gov. Mike Beebe, said the governor appreciated the 8th Circuit’s quick decision, which will aid state officials in addressing issues at the school district level. The state Department of Education took over the Pulaski County Special district last June, replacing the superintendent and dissolving the School Board because of financial mismanagement.

“We’ll continue to work with the attorney general’s office as that office crafts what comes next,” DeCample said. “We recognize that there are more steps to go through but I think our argument is going to remain the same.”

Damon Hewitt, a New Yorkbased attorney with the NAACP Legal Defense and Educational Fund Inc. which helps represent black students in the case, said: “Today’s opinion should send a clear message to school districts throughout the country that compliance with desegregation orders is not optional. Both the courts and communities will hold these districts to both the letter and spirit of the law.”

State Rep. John Walker, DLittle Rock, an attorney who also represents the black students known as the Joshua intervenors in the case, said he was pleased with the ruling on the state funding but disappointed that the appeals court ruled in favor of releasing the North Little Rock school system from court monitoring.

He has asked Marshall, the district judge, to review the testimony given Miller earlier and arrive at a different conclusion regarding the North Little Rock district’s eligibility for full unitary status.

“We will be back before the court of appeals on those,” Walker said.

NORTH LITTLE ROCK

Miller had found that the North Little Rock district met the requirements of its desegregation plan in most areas — including student discipline and achievement — but failed to adequately document its efforts to recruit black teachers. Miller directed that the district do that documentation for two more years.

The 8th Circuit panel reversed Miller’s ruling.

“While the goal of documenting compliance over time is a laudable one, the district court abused its discretion by imposing new data collection and reporting requirements with respect to staff recruitment that were not agreed to by the parties in the 1992 Plan,” the appeals court opinion states.

The 8th Circuit found that the North Little Rock district’s efforts constituted a good faith effort. It also found the remnants or vestiges of a segregated school system had been eliminated to the extent practicable. That was shown by the fact that the percentage of black teachers in the district — now 16.7 percent — exceeded that in the labor market. About 9 percent of the certified educators in the state are black.

The appeals court directed the district judge to declare the district unitary and released from court monitoring.

“It is a matter of real significance and pride to North Little Rock that they will be unitary and out of court supervision,” said Jones, the district’s attorney.

North Little Rock Superintendent Ken Kirspel said there is likely to be less documentation and paperwork required of district officials, who will no longer have to prove their efforts to the courts. But he said little else will change in the way the district does business.

“Our attitude is not going to change. We are going to keep doing things as we have been doing, which is acting in the best interest of kids,” Kirspel said.

PULASKI COUNTY SPECIAL

The 8th Circuit affirmed Miller’s finding that the Pulaski County Special district failed to meet its obligations in regard to student assignment, Advanced Placement and gifted education, discipline, school facilities, scholarships, special education, staffing, student achievement and monitoring.

The appeals court rejected arguments that the district had better desegregation outcomes in some of those areas than other districts that have been declared unitary — even though it had failed to carry out the relevant provisions of its Desegregation Plan 2000.

Repeatedly the court wrote: “PCSSD has done nothing to demonstrate to the public and the parents and students of the once disfavored race that it intends to honor its commitment in good faith.”