Meeting updates sides in Pulaski County school desegregation case

Talks held ahead of hearing

U.S. District Chief Judge D. Price Marshall Jr. met Tuesday with attorneys for the Pulaski County Special School District and Black students known as the McClendon intervenors in preparation for a multiweek hearing that begins at 8:30 a.m. July 14.

Marshall will be the presiding judge in the hearing to determine whether the 12,000-student Pulaski district has met its school desegregation obligations, qualifying it to be declared unitary and released from further federal monitoring of its operations. The McClendon intervenors are challenging the district's compliance in regard to student achievement, student discipline practices, the condition of school campuses and the district's self-monitoring of desegregation efforts.

One wrinkle revealed at Tuesday's status conference was that a Pulaski County Special district expert witness -- described by attorney Amanda Orcutt as "crucial" to the district's case on student achievement and discipline practices -- is barred by his organization from out-of-state travel at this time.

Wendell Brown, central division senior director at AVID Center in Dallas/Fort Worth Area, was identified by the school district at the beginning of the year as someone who would testify in court about the impact the AVID program has had on the district's desegregation obligations.

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Attorneys for the district said they didn't know the reason for the travel restriction.

Travel restrictions have become common because of the coronavirus global pandemic.

AVID stands for Advancement Via Individual Determination. It is a nonprofit college-readiness program that is designed to increase schoolwide learning and performance. AVID services to schools nationwide include a range of faculty training programs, as well as lesson plans and data tracking.

Austin Porter Jr., lead attorney for the McClendon intervenors, objected Tuesday to suggestions that Brown participate in the hearing electronically or that his deposition and cross examination be taken in Texas and presented to Marshall at a later date.

Marshall said that in other cases in which witnesses were unable to travel, arrangements have been made for the video appearance from a federal courthouse near the witness's home. However, that was done only with the mutual agreement of the parties in the case.

Marshall had earlier denied a motion for Robert Pressman of Lexington, Mass., an attorney for the McClendon intervenors to participate in the court hearing electronically.

"I have to be fair," Marshall said about barring electronic participation in the upcoming hearing. "I told Mr. Pressman he needs to be here. The door has to swing both ways," the judge said.

Marshall told the attorneys for the district and the McClendon intervenors to consider ways to resolve the issue and submit a joint report to him on Friday.

"This might be the time for some horse-trading," he told the attorneys.

Tuesday's status conference took place a day after Marshall on Monday had issued a written response to some earlier motions and arguments made by the two parties.

One of those disagreements centers on whether the district has the burden of proving that it has met the obligations in regard to student achievement, discipline and self monitoring or whether the intervenors have the burden of proving that the Pulaski County district failed to comply. The burden of proof is also an issue in an upcoming October hearing on whether the Jacksonville/North Pulaski School District is unitary.

"The Court punts," Marshall wrote. "The districts will present their cases first at the July and October trials. But, the Court takes this burden of proof motion under advisement. This issue requires study and reflection, which the Court has not yet had time to do. Plus, the Court would benefit from a conversation with counsel during oral argument at the end of our July trial on this important point."

On other matters, Marshall granted motions by the Pulaski County Special district to exclude testimony from potential witness Rizelle Aaron and "expert" testimony from Rep. Joy Springer, D-Little Rock, although the judge said Springer can testify as a "fact" witness.

Springer is a longtime monitor of desegregation plan compliance in all four Pulaski County school districts.

About Springer being an expert witness, Marshall said that none of the applicable provisions of federal rules for identifying someone as an expert witness had been met by the McClendon intervenors, nor had the judge's own deadline for identifying expert witnesses been met.

Marshall denied the Pulaski County Special district's earlier motions to limit testimony about student discipline practices in the district and the condition of school facilities.

Further, Marshall responded in the Monday order to a request from the intervenors to allow the 79-year-old Pressman to work online in the hearing to avoid having to travel to Little Rock and possibly be exposed to the virus in those travels.

"Full remote participation by telephone or video in trial is unworkable," Marshall said. "Mr. Pressman is welcome to listen by telephone so he can collaborate with other counsel during breaks, in the evenings and on the weekends during our multi-week trial. But he may not examine witnesses, make objections or make arguments during the trial itself unless he can be present in the courtroom."

On Tuesday, Pressman -- who was on the phone for the status conference -- told the judge that he did not recall his past involvement in the case by telephone to be a challenge. Pressman also noted that the U.S. Supreme Court has recently heard cases by teleconferences. Marshall responded that his inability to see Pressman as well as some instances of audio problems made a telephone appearance difficult.

"We will have to agree to disagree," Marshall told Pressman.

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