Full opinion text
INTERIM ORDER HENRY WOODS, District Judge, I SETTLEMENT OF STATE’S LIABILITY The parties agreed to settle the state’s liability as outlined generally by the Court of Appeals in its decision of February 9, 1988, Little Rock School District v. Pulaski County Special School District, 839 F.2d 1296, 1306, (8th Cir.) et seq. Although this settlement was effectuated by a legislative appropriation, a successful lawsuit was filed attacking all appropriations of the 1989 regular session of the Legislature. Chancellor Lee Munson held these appropriations invalid since they violated Article 5, Section 30 and Article 5, Section 40 of the Arkansas Constitution. His decision was affirmed by the Supreme Court of Arkansas in Fisher v. Perroni, 299 Ark. 227, 771 S.W.2d 766 (1989). In response to this ruling, Governor Clinton called a special session of the Arkansas Legislature to convene June 20, 1989. A new bill, SB 151, approving the settlement was considered by the House of Representatives on Friday, June 23, 1989, having been passed by the Senate. After an amendment was placed on the bill and it was called up on third reading and final passage, a bizarre series of events occurred. A pair was stricken and one legislator’s voting machine key was allegedly stolen or was misplaced. The votes were cast and the ballot sounded. The Speaker declared that the bill had failed by one vote. The House then adjourned. The bill was however sent to the Senate stamped “Failed” and without the Speaker’s approval endorsed thereon. The Senate, still in session, concurred in the House Amendment and sent the bill to the Governor, who signed it. The actions of the Senate and the Governor were apparently taken to facilitate a lawsuit to determine whether the bill had actually passed. Enactment of this bill would have avoided much further litigation and would have removed an enormous burden from my shoulders. Nevertheless, it would be a serious breach of comity for a federal court to invade the precincts of a state legislature and interpret its rules and procedures to determine whether a bill secured enough votes to become law. This is an issue for presentation to the Arkansas courts, since it ultimately involves interpretation of Arkansas statutes and the Arkansas Constitution. It may be months before this issue is settled in the Arkansas courts. Whether this bill actually became law is highly questionable. I cannot approve the settlement because the settlement is contingent upon legislative approval and a legislative appropriation to fund it. I cannot in good conscience accept this bill as having passed. Only the Arkansas courts can make this determination. I recognize that the actions of the Senate and Governor Clinton were taken in good faith to preserve the matter for judicial review. However, I am sure that both recognize the difficulty of establishing the validity of the bill’s passage in the House. Adherence to the separation of powers doctrine makes courts, state or federal, highly reluctant to invade the internal workings of the legislative branch. Be that as it may, I cannot await the ultimate resolution of this matter. The Little Rock School District (LRSD) and Pulaski County Special School District (PCSSD) are in dire financial straits. I must assume my responsibility to assess the extent of the State’s liability. There are three areas involved in the state’s liability: (1) The magnet schools area; (2) Compensatory education for the 1988-89 school year; and (3) Other past and future liability of the State (the major component). Hearings were held on the magnet school issue (1), supra, by Special Master McCut-cheon, who filed Findings of Fact, Conclusions of Law and Recommendations on March 10, 1989 (Docket # 1169). The parties asked me to hold my ruling in abeyance since they were working on an overall settlement and desired to incorporate his formulations therein. This was done, and the provisions with regard to the magnet funding claims of the three districts were included on pages 2-7 of the settlement agreement. Reference is made thereto for further elucidation of the Master’s Findings of Fact, Conclusions of Law and Recommendations, which I now approve. The State is ordered to make immediate payment of these funds to the districts. Special Master McCutcheon held hearings as to the State’s liability for the 1988-89 school year but withheld, at the request of the parties, making findings of fact and conclusions of law pending settlement negotiations. Since the settlement has apparently now been vitiated, the parties are given twenty (20) days to submit proposed findings of fact and conclusions of law to Special Master McCutcheon so that a determination can be made as to the State’s liability for the 1988-89 school year. Hearings have not been held as to the other liability issues of the State. Those hearings will be scheduled as soon as practicable. II METROPOLITAN SUPERVISOR I accept the recommendation of Special Master McCutcheon regarding the appointment of a Metropolitan Supervisor. As previously announced, Eugene Reville will serve as the Metropolitan Supervisor for a period of three years, commencing July 1, 1989. In light of the inadequacies in the proposed plans, his first priority shall be to oversee, direct and insure the development of acceptable, workable and constitutional student assignment plans. Although student assignments need not necessarily be made across district lines, if such assignments serve to reduce busing, promote educational goals, and reduce costs, they should not be precluded. While it is true that school district lines should not be “casually ignored or treated as a mere administrative convenience,” it is well-settled that “[bjoundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief.” Milliken v. Bradley, 418 U.S. 717, 741, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069 (1974) (Milliken I). Contrary to the situation in Milliken I, all of the school districts in this case have been adjudicated to be constitutional violators. All have had a full and fair opportunity to be heard. Not only were the North Little Rock School District (NLRSD) and PCSSD found liable for interdistrict segre-gatory acts, but both have been found liable for segregatory acts within their own districts. All three districts have had four years since my consolidation order was reversed to develop independent autonomous plans to remedy the conditions that offend the Constitution within their districts. None has been successful. See, Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II). In their objections to the Findings of the Special Master, NLRSD and PCSSD contend that the mandates of the Eighth Circuit constitute the complete remedy for their interdistrict violations. Even if that were true, the Special Master’s Findings and Recommendations clearly indicate that interdistrict cooperation is required to remedy each district’s intradistrict violations. In any event, all student assignments should be approved and announced by December 31, 1989 for students in all three districts. Subsequently, the educators from each district responsible for the functions recommended for merger should present their recommendations and ideas as to the most effective and educationally sound methods for merger. The suggestions and recommendations should be presented to Mr. Re-ville by March 1, 1990. In order to accomplish his charge, the Metropolitan Supervisor must have an adequate budget. Mr. Reville should prepare and submit to the court a budget for approval by August 15,1989. The costs associated with the Metropolitan Supervisor will be apportioned as follows: the amount previously ordered for the Pulaski County Educational Cooperative (Co-op) shall be applied toward the budget of the office of the Metropolitan Supervisor. It is apparent that the Co-op has not served the function envisioned by the court when it was established. See Stipulation, Exhibit “A.” In the Settlement Agreement, all parties agreed that the Co-op should be eliminated. Joint efforts should now be coordinated through the Metropolitan Supervisor. The balance of the budget will be apportioned among the school districts on a per pupil basis. Mr. Reville is authorized to employ a professional staff of up to four people. His salary is set at $98,500 per year. In addition to each district’s portion of Mr. Reville’s salary, it should add an amount equal to its portion of fringe benefits (e.g. hospitalization insurance), using the percentage used in calculating fringe benefits for the highest ranking person in that district. This “fringe benefit” amount will apply toward offsetting the penalty Mr. Reville will suffer by leaving the New York pension program prior to the expiration of his six-year contract in Buffalo. The Greater Little Rock Chamber of Commerce has offered its assistance in determining whether additional funds are required to make Mr. Reville whole, and if so, in attempting to secure those funds from resources in the community so as not to further burden the taxpayers. The Metropolitan Supervisor is hereby vested with the authority to direct and oversee the completion of a comprehensive long-range desegregation plan, and to give counsel and direction to the superintendents of the school districts. He shall have access to staff members and data in all three districts. He should meet frequently with superintendents and school boards, and work cooperatively with them. In the final analysis, however, Mr. Reville must have requisite authority to get the job done. Thus, necessarily, in matters concerning desegregation and the expenditure of funds required for successful implementation of plans, he must have the final word. While enthusiasm and goodwill cannot be effected through judicial fiat, it is my hope and expectation that the parties and Mr. Reville will work cooperatively for the good of all the children in this county. In the event of an irreconcilable difference with the direction and guidance of the Metropolitan Supervisor, any party may petition this court, setting out its objections. Ill MERGER OF FUNCTIONS My position on consolidation of the three districts in Pulaski County is well known. In my initial remedial opinion in this case, I took the position that consolidation was the best remedy for solving the thorny problems involved in integrating these districts. My view has not changed and some of my comments have proved prophetic. “Failure to utilize a county-wide consolidation plan would exacerbate white-flight problems in the County’s residential growth.” Little Rock School District v. Pulaski County Special District, 597 F.Supp. 1220, 1225 (E.D.Ark.1984). There has been massive white flight from the Little Rock District. The Little Rock District is now more than 65% black at the elementary level. In that opinion I made other comments which have proved to be close to the mark. “The alternative of merely extending LRSD to lines to be conterminous with the City of Little Rock boundaries would have at most minimal and temporary results and would not adequately address the constitutional violations found in this Court’s prior opinion.” Id. at 1224-25. The Court of Appeals, however, chose this alternative. Little Rock School District v. Pulaski County Special District, 778 F.2d 404 (8th Cir.1985). In the four years that followed, the districts have not effectuated autonomous plans that have contributed to the desegregation of public schools in Pulaski County. When I issued my original opinion, there were four virtually all-black elementary schools in the Little Rock School District. Now the parties propose a plan under which there would be eight such schools. PCSSD still has twelve schools outside the guidelines set by the Eighth Circuit Court of Appeals. NLRSD has one school outside the guidelines and others precariously close. For a time I considered again ordering consolidation on the basis of changed conditions, particularly since Special Master McCutcheon has found that “consolidation is now justified.” He noted that “the Senate Education Committee of the 1989 General Assembly recommended passage of a bill which would have consolidated these three school districts.” Because this action came late in the session, the bill did not come to a floor vote. The legislature, in its Regular Session, requested that I strike ARTICLE II(J) of the proposed settlement agreement which reads as follows: J. Recognition of Autonomy The State, Joshua and LRSD recognize that PCSSD and NLRSD are independent, sovereign, desegregating school districts operating pursuant to court orders and agreements and that this agreement is both necessary and desirable to facilitate their desegregation activities as well as their cooperative desegregation activities with the LRSD and others. This request can only be interpreted as an expression of legislative intent that I do nothing that might interfere with future consolidation of these districts, either voluntarily or by legislative act. It is significant that the Bi-racial Committee of the LRSD endorsed unanimously the recommendations of the Special Master concerning merged functions. Their report concluded with this statement, “In conclusion, we emphasize that the only viable long term desegregation solution is mandatory, countywide assignments — consolidation.” The Bi-racial Committee’s “Response to Recommendations of Special Master Aubrey V. McCutcheon, Jr.” is attached as Exhibit “B.” The Bi-racial Committee in PCSSD apparently made no evaluation of the Recommendations, nor did the Desegregation Team in NLRSD. However Special Master McCutcheon abandoned the consolidation approach in favor of the eventual merger of some functions. He felt that consolidation might be interpreted as contrary to the decision of the Court of Appeals, supra. While a strong case can be made for changed conditions, I reluctantly concur in his conclusion. Special Master McCutcheon has set forth a considerable number of such functions that could be merged with great financial savings to the three districts and added convenience to the patrons. As noted supra, I am asking that this problem be attacked by Metropolitan Supervisor Reville after he has dealt with the immediate problem of student assignments in a long-range integration plan. I am directing that he, in conjunction with the superintendents and boards of the three districts, explore in a cooperative manner all the areas suggested by Special Master McCutcheon. IV LONG-RANGE PLANS I have reviewed the long-range plans submitted by the school districts, the Special Master’s Findings of Fact, Conclusions and Recommendations, and the objections filed by the parties. Beyond peradventure the student assignment portions of the PCSSD and LRSD plans, as submitted, are insufficient and unconstitutional. The Bi-racial Advisory Committee of the LRSD, after evaluating the Findings and Recommendations of the Special Master, unanimously concluded, “After thorough review of [Special Master] McCutcheon’s statement on the plans submitted by the three districts, we endorse his recommendations, finding that generally the recommendations are sound and will promote desegregation throughout the metropolitan area.” In LRSD’s proposed plan almost one-fourth of the elementary schools are contemplated to be all black. The entire mandatory busing burden at the elementary level for desegregation purposes falls on black children. LRSD, in its objections points out that a few white elementary children are bused, but the fact is that not one white elementary child would be man-datorily bused east of University Avenue. All of the historically “black” schools lie east of University Avenue, and all are proposed to be all-black incentive schools. Double funding is promised for the all-black schools. Yet it is impossible to determine from the submissions how the funds will be spent. LRSD, in its Objections, contends that the plans were intentionally left vague so that patrons could have input into the programs. LRSD admits that the double funding is guaranteed for only six years, but contends that it “retains its commitment to provide compensatory and enhancement funding to any school which might remain racially identifiable.” That “commitment” does not appear in the plan. Several of LRSD’s “general objections” to the Special Master’s Findings and Recommendations require comment. LRSD states: “Most of the deficiencies in implementation of 1988-89 Plan took the form of short-lived delays and they have been cured.” For the 1988-89 “stabilizing” school year, LRSD was required, in its court-approved plan, to follow a very detailed plan for improving schools with a black enrollment outside the Eighth Circuit guidelines. These schools, called “Major Enhancement” schools, were to have, inter alia, extensive building renovation, enhanced programing and a lower teacher-pupil ratio. The Special Master’s Findings and Recommendations regarding LRSD’s deficiencies during this “stabilizing” year were obviously made to inform the court of serious implementation problems and lack of follow-through. LRSD next argues that “a number of alleged 1988-89 Plan violations involve things not required by the Plan,” and “LRSD provided much information to the Special Master that is not reflected in the Findings.” I find these two assertions troubling. LRSD apparently considers itself “bound” only by commitments explicitly set out in its plans. Yet it attempts to justify ambiguities and lack of detail in its plan by noting that “much information” was provided to the Special Master. The rather obvious question arises as to why this important information was not included in subsequent revisions of the proposed plans. LRSD further objects that the Special Master’s Findings “fail to give due consideration to the significant accomplishments of LRSD and the other parties (including the cooperation reflected in the In-terdistrict Desegregation Plan and the Settlement Agreement) during the 1988-89 school year.” As I have previously announced, the court does indeed welcome cooperation from the parties. However, in formulating and implementing solutions to the complex problems inherent in school desegregation, it is essential to understand the separate and distinct responsibilities of the school districts and the district court (which includes the court-appointed Special Master). The primary responsibility for constructing and presenting a desegregation plan rests with the school authorities. “The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694-95, 20 L.Ed.2d 716 (1968) (emphasis original). “The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a ‘white’ school and a ‘[black]’ school, but just schools.” Id. at 442, 88 S.Ct. at 1696. “In Brown II [Brown v. Bd. of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)] the Court squarely held that school authorities have the primary responsibility for elucidating, assessing, and solving these problems....” Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (Milliken II). “The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation_” Id. 391 U.S. at 439, 88 S.Ct. at 1695. Further, it is “incumbent upon the district court to weigh [the school board’s claim that its plan promises meaningful and immediate progress] in light of any alternatives which may be shown as feasible and more promising in their effectiveness.” Id. The United States Supreme Court has, in unambiguous terms, held that a district court (and thus a special master) should strictly scrutinize a plan that proposes one-race schools. “The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971). The Court went on to flatly hold that “in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition.” Id. This is not new law. If counsel for the parties were surprised by the scrutiny given their proposals, they should not have been. In its recent holding in the landmark case of Brown v. Board of Education, No. 87-1668 (10th Cir. June 2, 1989), the Court of Appeals for the Tenth Circuit has alluded to settled principles of school desegregation law. The Brown decision makes it clear that the proposed plans, as presented, could never result in unitary status for LRSD or PCSSD. I agree with the Special Master’s conclusion that we have come too far to settle for a plan which leads not down the path toward integration and unitary status, but rather down a path which will require yet another “plan” at the end of six years. I further agree with his conclusion that all the children in Pulaski County, Arkansas deserve to rely upon a plan which will serve far longer than six years. In Brown, the court held: “Where racial imbalance in student assignment is still extreme in a system that formerly mandated segregation, appellate courts have reversed findings of unitariness without looking to other factors.” Id. at 18. The parties should heed the warnings of Brown. I cannot and I will not approve any plan which does not promise to lead to unitary status in these districts. The Joshua Intervenors and the LRSD have, in their Objections, opined that since no formal hearings have been held on the plans, the Special Master’s conclusion of inadequacy was premature, and that this court must hold evidentiary hearings before deciding the plans are insufficient. The argument is wholly without merit. The Eighth Circuit has held that hearings are required before the court can reject a facially constitutional plan. I have found no holding requiring that evidentiary hearings be held on plans that are facially unconstitutional and do not even purport to be within the mandates of the Court of Appeals. All three districts object to the Special Master’s Findings and Recommendations because, “[t]he legitimate concerns articulated by the Special Master are insufficient to support the remedy of interdistrict receivership.” As the parties well know, I favor voluntary, innovative and education-centered strategies for desegregation of schools. To that end, I have appointed people to assist in this case who share that philosophy. But these methods of desegregation require scrupulous attention to detail, extensive planning, adequate contingency plans, extraordinary cooperation and communication — in short, an enormous amount of work. Thus far, the parties have failed to come forward with such a well-planned desegregation proposal. Thus, all are in default. The Special Master was charged with the duty of reviewing, evaluating and assessing the submissions of the parties. It was not his job to “write the plans,” and indeed the districts would have rightly objected to such a charge. The burden was squarely upon the school authorities to devise a plan and to take whatever steps necessary to convert to a unitary system. See Green, supra. In the absence of adequate plans proposed by the school authorities, however, judicial authority may be invoked. “Judicial authority enters only when local authority defaults.” Swann, supra, at 16, 91 S.Ct. at 1276. “In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.” Id. at 16, 91 S.Ct. at 1276. The Special Master has not recommended an interdistrict receivership, nor will I order that remedy. However, it is clear, that the districts require more than evaluation and critique of their submissions. Obviously, the districts need the full-time expertise of an educator with experience in the actual construction of a workable plan. For that reason, I have adopted the recommendation that a Metropolitan Supervisor be appointed. That the districts characterize this as “receivership” is both inaccurate and disappointing. I accept the Special Master’s recommendation that the concepts of attendance zones and feeder patterns be approved. I also agree that if the framework proposed by LRSD is to be accepted, details must be included. If the parties intend to proceed with the all-black incentive schools, approval will depend on exacting detail, including reasonable and workable plans for the integration of those schools. As the parties return to the task of constructing workable student assignment plans, the well-settled principles of the law should be kept in mind. However, it is not enough to file a plan only incorporating the policy statements. ... A plan should not only specify ‘a positive commitment to a reasonable program;’ it should also state what that program is. This embodies (1) the steps to be carried out, and (2) the time schedule to be followed in doing so. Kemp v. Beasley, 389 F.2d 178 (8th Cir.1968). “The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I [Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ] as contrary to the equal protection guarantees of the Constitution.” Swann at 15, 91 S.Ct. at 1275. “The measure of any desegregation plan is its effectiveness.” Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). Under relevant Supreme Court decisions, mere absence of invidious intent on the part of the school district is not sufficient to satisfy its heavy burden of proof; the district’s duty is to act affirmatively, not merely to act neutrally [citation omitted]. The school district must show that no causal connection exists between past and present segregation, not merely that it did not intend to cause current segregation. The causal link between prior and current segregation is not snapped by the absence of discriminatory intent alone, or even by a firm commitment to desegregation, where it is not accompanied by action that in fact produces a unified school district. Brown, supra at 19-20. [emphasis original] The ultimate test of what the school district has done is its effectiveness, most significantly its effectiveness in eliminating the separation of white and minority children. While a district is not always required to choose the most de-segregative alternative when it selects a particular option, the result of the sum of the choices made by the district must be to desegregate the system to the maximum possible extent. Id. at 21-22. Neighborhood school plans must be both neutrally administered and effective. A plan that is administered in a scrupulously neutral manner but is not effective in producing greater racial balance does not fulfill the affirmative duty to desegregate.... Ultimately, whether the use of a neighborhood school plan in a particular case is consistent with a school district’s duty to desegregate turns on whether the “school authorities [have made] every effort to achieve the greatest possible degree of actual desegregation taking into account the practicalities of the situation.” Id. at 23-24, quoting, Davis, supra, at 33, 91 S.Ct. at 1290. NLRSD has objected to the Findings and Recommendations, citing this court’s prior February 27, 1987 approval of its desegregation plan. Specifically NLRSD objects to the Special Master’s Findings relating to the lack of plans to deal with the substantive education elements of desegregation. NLRSD concedes that the “sufficiency of implementation” was “largely an open question during the Master’s tenure.” NLRSD goes on to question the authority of the Special Master to make findings relative to compliance with its desegregation plans. The objection regarding the power of the Special Master to ensure compliance in NLRSD, as well as in LRSD and PCSSD, is without merit and need not be commented upon. NLRSD’s arguments of “res judicata” and/or mootness have been made and rejected by the court of appeals: The district court has been instructed to maintain jurisdiction until full integration is achieved.... The initial motion in this case is another example of the court’s continuing jurisdiction over desegregation of the North Little Rock schools. This case should not be dismissed and a case or controversy sufficient to satisfy Article III will exist until such time as the district court determines that a unitary system of education has been achieved and the North Little Rock School District is thoroughly integrated. As the Fifth Circuit has stated, “a school system is not automatically desegregated when a constitutionally acceptable plan is adopted and implemented.” United States v. Texas Education Agency, 647 F.2d 504, 508 (5th Cir.1981). See Pate v. Dade County School Board, 588 F.2d 501, 504 (5th Cir.) (per curiam), cert. denied, 444 U.S. 835, 100 S.Ct. 67, 62 L.Ed.2d 44 (1979) (“[we have recognized] that the district court has a continuing responsibility to appraise the system in the light of actual conditions and experience and make required changes to assure the maintenance of a unitary system”); Thompson v. Madison County Board of Education, 496 F.2d 682, 686-87 (5th Cir.1974). Davis v. Board of Education of North Little Rock, 674 F.2d 684 (8th Cir.1982). I have reviewed the transcripts of compliance status conferences before the Special Master. A desegregation plan must encompass more than data collection. Furthermore, when high level administrators are unaware of the plan, and state that there is no plan to remedy certain deficiencies, then there is, in fact, no plan, regardless of the volumes of written material presented by attorneys to the court. The district court is obliged to “appraise the system in light of actual conditions and experience.” Id. at 689. “Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed.” Green at 439, 88 S.Ct. at 1695. NLRSD asserts that it “has chosen to focus not on race and racial disparity but on achievement deficits of individual children.” Of course, the eventual goal of any district ought to be “colorblind,” race-neutral policies with respect to all its endeavors. However, in order to counter the many years of de jure color-conscious, discriminatory policies and practices, some affirmative, race-conscious, remedial measures are required. “Under the relevant Supreme Court decisions, mere absence of invidious intent on the part of the school district is not sufficient to satisfy its ‘heavy burden’ of proof; the district’s duty is to act affirmatively, not merely to act neutrally.” Brown at 19. In fact, the NLRSD Supplementary Plan states: The District recognizes, however, that the regular curriculum is often insufficient in aiding disadvantaged students, particularly disadvantaged minority students suffering the effects of centuries of societal discrimination, to achieve mastery of basic skills. Therefore, within the framework of a comprehensive curriculum, which meets and exceeds State Standards and which is structured to meet the varying individual needs of all students, the North Little Rock School District must address identified remedial needs of disadvantaged minority students. NLRSD Supplementary Plan, at 4.2. Compensatory and remedial programs must be aimed at correcting the specific Constitutional violations of the NLRSD, rather than “the effects of centuries of societal discrimination.” Thus the remedy must be designed “as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Mil-liken I, at 746. Y CONCLUSION The Findings of Fact, Conclusions and Recommendations of Special Master McCutcheon, attached as Exhibit “C,” are approved as submitted, except as specifically noted in this Order. As previously announced, the school assignments in LRSD for the 1989-99 school year are approved as recommended by the Special Master, except that the pairings of Fulbright, Ro-mine, McDermott, and Franklin shall not be implemented. Instead, LRSD is directed to focus time and effort toward completing the Incentive School programs. In PCSSD, for the 1989-90 school year, the Special Master’s recommendations for a 42% maximum black enrollment is approved. PCSSD will be permitted to use voluntary efforts to meet this goal. NLRSD will be permitted to use voluntary efforts for the 1989-90 school year to bring its schools into compliance with guidelines of the Court of Appeals for the Eighth Circuit. All proposals and plans submitted by the parties and recommended for approval by the Special Master are approved. IT IS SO ORDERED. EXHIBIT A STIPULATION OF THE LITTLE ROCK SCHOOL DISTRICT, THE PULASKI COUNTY SPECIAL SCHOOL DISTRICT, AND THE NORTH LITTLE ROCK SCHOOL DISTRICT FOR THE CREATION OF A PULASKI COUNTY EDUCATIONAL COOPERATIVE Filed Feb. 19, 1987 1. The State currently funds fifteen (15) regional educational cooperatives to provide service to school districts within identified geographic areas. Staff development, distribution of audio visual resources, “teacher center” activities, and purchasing are among the services currently being provided. 2. The three (3) school districts in this litigation were instructed by the Eighth Circuit Court of Appeals to explore cooperative programs. Little Rock School District v. Pulaski County Special School District, 778 F.2d 404, 436. 3. The parties agree that an educational cooperative should be formed and modeled after the fifteen (15) other regional cooperatives; and funded by the State in the same manner as the existing cooperatives. The name of the cooperative should be Pulaski County Educational Cooperative. 4. The parties to the stipulation agree the creation of interdistrict magnet schools, M to M transfers, and interdistrict transportation systems increase the need for cooperation and provides new avenues for further cooperative ventures. The opportunity to participate in cooperative ventures would strengthen each district’s ability to provide an equitable and effective educational program for its students. 5. An interdistrict venture of this type would facilitate each district’s desegregation efforts and would aid the avoidance of unanticipated effects of one district’s plan on the plans of the other districts. 6. The parties agree that, within the structure of the educational cooperative, they will explore the possibility of cooperative efforts of mutual benefit. These will include, but will not be limited to, discussing the possible cooperative efforts listed by the Court of Appeals in its opinion, LRSD v. PCSSD, 778 F.2d 404, 430-31 (8th Cir.1985). 7. The governing body of the cooperative will be comprised of the Superintendents of the member school districts. Respectfully submitted, KAPLAN, BREWER & MILLER, P.A. 415 Main Street Little Rock, AR 72201 (501) 372-0400 HOLLINGSWORTH & HELLER, P.A. 415 Main Street Little Rock, AR 72201 (501) 374-3420 JOHN M. BILHEIMER 324 West 14th Street Little Rock, AR 72202 (501) 374-4944 PULLIAM LAW OFFICES, P.A. Suite 350, Gazette Building 112 West Third Street Little Rock, AR 72201 (501) 371-3888 By: Janet L. Pulliam JANET L. PULLIAM Attorneys for Little Rock School District NEAL, GERBER & EISENBERG 208 S. LaSalle Street Chicago, IL 60604 WRIGHT, LINDSEY & JENNINGS 2200 Worthen Bank Building Little Rock, AR 72201 By: M. Samuel Jones M. SAMUEL JONES Attorneys for Pulaski County Special School District JACK, LYON & JONES, P.A. 3400 Capitol Tower Capitol at Broadway Little Rock, AR 72201 (501) 375-1122 By: Stephen W. Jones STEPHEN W. JONES Attorneys for North Little Rock School District TED SHAW, ESQUIRE Legal Defense Fund 99 Hudson Street New York, NY 10013 JOHN W. WALKER, P.A. 1723 Broadway Little Rock, AR 72206 By: [Signature! Attorneys for Joshua Inter-venors EXHIBIT B Response From the Bi-racial Advisory Committee to Recommendations of Special Master Aubrey V. McCutcheon PREAMBLE: The Bi-racial Advisory Committee, a community based group, has been in a position to study the Little Rock School District’s plan, to discuss the plan with District staff, and to get input from a cross section of the community. The composition of the Committee has assured discussion that mirrors many of the sentiments of the patrons of the Districts. Our conclusions in this report are based on close study and discussion of the Recommendations of the Special Master. * After examination of the Recommendations, we find that the environment created by the media and others through emotional and inflammatory statements has miscommunicated the reality of the situation to the public. We perceive that a disservice has been done to the citizens of Pulaski County and has contributed to the instability we all decry. After thorough review of McCut-cheon’s statement on the plans submitted by the three districts, we endorse his recommendations, finding that generally the recommendations are sound and will promote desegregation throughout the metropolitan area. We also observe that the Special Master’s recommendations are not that far removed from the previous recommendations by the Little Rock School District. * While we recognize that there may be some inconsistencies in the findings of facts as outlined by the Special Master, this Committee has focused on the recommendations for the Long Range Desegregation Plan. Desegregation is the primary objective of this Committee; therefore from the viewpoint of desegregation we recommend that the Board forego any appeal process and concentrate on implementing the recommendations of the Special Master. We have set out below comments and recommendations. Response to Recommendations Recommendation I. Metropolitan Supervisor of Desegregation Services & Programs This committee agrees with the Special Master’s recommendation of a metropolitan supervisor. While we considered other actions, we found that the Special Master’s recommendations were the most feasible. Recommendation II. Finance Statement with the State We concur in the Master’s recommendation of the settlement. Recommendation III. Student Assignment Plan (We have only addressed the Little Rock Plan) The Special Master has pointed out a lack of ability of the District to outline a detailed plan for desegregation. It is our finding that a countywide desegregation plan is inevitable and should be developed. We agree in principle with the program outlined in the March 1989 plan for Incentive Schools. However, we recognize, as did the Special Master, that the Incentive Schools should be temporary. The Incentive Schools as currently planned should only be a short term solution. Mandatory attendance zones should be established on a countywide bases. In compliance with the Special Master’s recommendations the District should develop a plan for integrating the Incentive Schools or phasing them out over the course of the settlement. The Bi-racial Committee needs to be involved in the development of incentive programs and the location of those programs. * As we have mentioned earlier, we endorse the mandatory assignment of students across district lines. * We endorse the merger of functions as outlined. Recommendation IV. School Assignment for the 1989-90 School Year: We also endorse the Special Master’s recommendation for the School assignment plan; however, because it is not feasible to implement all recommendations for the next year, the Board should consider reasonable assignments for the 1989-90 year. In essence for 1989-90, the District should ask the Court to allow it to make its attendance zone assignments as specified by the Master with these exceptions: 1. Kindergarten students should be assigned by attendance zones. 2. Dunbar should not be moved to an international studies/gifted and talented center for 1989-90. The District and Court should review the implications of making Dunbar an interdis-trict magnet. 3. If zone attendance is used, we do not believe that pairings is necessary. However, for the next year the Board should ask the Court to reconsider the pairing of schools by split grades (K-3; 3-6). * We agree with the Special Master that grandfathering beyond 1989-90 is inconsistent with desegregation objectives. Recommendation V. Administration and Faculty We agree with the Special Master’s recommendation; however, we encourage the Board to begin discussion and coordination with the union. We recognize that it is not feasible to make changes for the 1989-90 year. Planning for these changes should take place during 1989-90 and be consistent with development of the zone assignment plan and other interdistrict remedies. Recommendation VI. Portable Buildings We concur with the Special Master’s recommendations and suggest that the District explore the feasibility of additions to existing structures. Recommendation VII. Additional Magnet Schools or Programs We concur with the Special Master’s recommendation; and suggest that the District declare a Magnet School moratorium. In conclusion, we emphasize that the only viable long term desegregation solution is mandatory countywide assignments —consolidation. EXHIBIT C FINDINGS AND RECOMMENDATIONS OF THE SPECIAL MASTER INTRODUCTION It is safe to conclude that the desegregation problems in Pulaski County have been in existence for a number of years and cannot be resolved with mere intrad-istrict remedies. Any intradistrict remedy in one district must have the capability of enhancing intradistrict remedies in the remaining districts. The three, districts cannot resolve the desegregation crisis in Pulaski County without cooperation and collaboration. In addition to cooperation and collaboration, the success or failure of school desegregation in Pulaski County depends on the effectiveness of the interdistrict assignment program. The demographics of the Pulaski County Special School District and the Little Rock School District are such that each district must rely on the other to meet the goal of desegregating all schools. Any long-range desegregation plan in the Little Rock School District will have to include an effective interdis-trict assignment program in order to be successful. (October 3, 1988 Proposed Desegregation Plan, § 1, p. 13.) After many months of working with the Little Rock School District (LRSD), the Pulaski County Special School District (PCSSD) and the North Little Rock School District (NLRSD), the inescapable conclusion is that the only sensible long-term solution to the desegregation challenges in Pulaski County, Arkansas is a Metropolitan remedy, if our commitment is to consider the education of children first. A sensible Metropolitan plan would reduce bussing for all children, and would reduce nonpedagogical costs, thus increasing the dollars available for the direct instruction of children. While the districts admit in their proposed plans the need for interdistrict remedies, the lack of substance in their plans results in a mere acknowledgement of a need to cooperate. All three districts face challenges in assigning students to ensure compliance with court orders. The Eighth Circuit guidelines require that the black percentage in all schools be plus or minus 25% of the black population of the district. All of the districts have reasonably interpreted that guideline to be calculated by organizational level. Even so, in light of the disparate black elementary populations in PCSSD (27%), and in LRSD (over 65%) the guidelines create vastly different standards for schools in the metropolitan area. LRSD elementary schools must have black populations of between 51% and 76.5% and the PCSSD elementary schools must be between 20% and 34% black. The variance often creates paradoxes: All of the PCSSD schools with black populations currently exceeding its guidelines would be within the LRSD guidelines or would exceed the allowable percentage of whites. It is difficult to rationalize how two schools, perhaps only several hundred yards apart, albeit technically in different school districts, could have such vastly different standards for determining whether each is acceptably desegregated. Compliance is further complicated by the peculiar geography of the districts, with PCSSD’s 730 square miles winding around and through the two city districts. As noted in the Interim Recommendations of August 2, 1988, much of the PCSSD is rural and undeveloped, making transportation difficult. The segregated housing patterns in all three districts, and the Eighth Circuit requirement that no mandatory bus ride for desegregation purposes can exceed forty-five minutes, when combined with the other factors, create an enormous challenge for desegregation planners. All three districts face the additional critical challenge of developing strategies to eliminate the unconscionable achievement disparity between white and black students. As this court and all of the parties well know, the easiest and least expensive way to technically accomplish desegregation, in terms of pupil mix, is to use mandatory cross-town bussing. To the credit of the parties, they have consistently expressed a desire to place emphasis, instead, on excellence and improved desegregated educational opportunities for all children, with full knowledge that such an endeavor would be far more costly in terms of dollars, time and commitment than a simple mandatory bussing plan. The Court of Appeals for the Eighth Circuit rejected consolidation of the three districts as too drastic a remedy in 1985. Little Rock School District v. Pulaski County Special School District, et al, 778 F.2d 404 (8th Cir.1985). However, in that opinion, even without the facts presently known, the Court urged the district court to “seriously consider[]” the PCSSD proposals with respect to cooperative programs. The PCSSD proposals are set forth on pages 430-31 of the Court’s opinion: PCSSD’s plan requires all students in the three districts to choose the school they wish to attend, selecting from among any of the schools in the three districts. Students who do not receive their first or second choice of school due to oversubscription are to be “mandatorily assigned (to another school) by an interdistrict administrative committee composed of administrative personnel from each of the three districts.” Enrollments are to be controlled “to racially balance all schools in each of the controlled three districts at proportions approximating that of countywide public school enrollment in the preceding school ... Specialty schools and specialty programs will be racially balanced at the countywide proportion plus or minus five percentage points” ... To facilitate in-terdistrict transfers, several policies are proposed, including the “effective schools” model and uniform grade structure including kindergarten, uniform grading, attendance and discipline policies. PCSSD proposes that the three districts share vehicle capacity, routing and supervision of the transportation system, that they consider the joint contract purchase of a computerized routing and scheduling system, and the purchase of identical vehicles, the joint purchase of fuel and parts, the sharing of repair facilities and enforcement of common regulations. PCSSD also proposed the formation of several tridistrict committees which would discuss cooperative ventures in several areas such as food preparation and delivery and maintenance service. Under this proposal, the three district controllers would meet in committee to discuss details of cost sharing and to explore other areas of financial cooperation, including establishment of a single millage rate in Pulaski County, coordinated millage campaigns, coordinated marketing of revenue bonds, common audit and accounting procedures, joint proposals for special grant or project funds and joint bidding and purchasing practices. ... PCSSD also proposes interdistrict cooperation on a variety of personnel matters. Id. at 430-31. The districts have had four years, acting autonomously, to develop and present plans which comply with court orders, plans that assure high-quality desegregated education for each child in Pulaski County both now and in the future. All three districts and the State Defendants have been adjudicated constitutional violators. They have been given ample opportunity to develop independent, autonomous plans. After four years, all three districts have failed. All are in default. Consolidation is now justified. Only NLRSD has presented a plan within the Eighth Circuit Guidelines for acceptable black/white populations. But, even NLRSD is now out of compliance with the pupil mix elements of its plan, and has no plan whatsoever to deal with the substantive education elements of desegregation: i.e., elimination of achievement disparities, over-representation of blacks in special education programs and disciplinary actions, and under-representation of blacks in Talented and Gifted programs, effective schooling for all children, effective desegregation in the areas of faculty, staff, students, facilities, transportation, extracurricular activities, etc. While consolidation is now justified, I am instead recommending the use of a Metropolitan Desegregation strategy before concluding that consolidation is the only available solution. Because the development of the Metropolitan Desegregation remedy will require extensive additional time and expertise, it is necessary for me to submit recommendations which permit continued progress to be made during the 1989-90 school year. Accordingly, I submit to you the following Findings and Recommendations consistent with the direction contained in the orders issued October 15, 1987 and February 11, 1988. As you will note, I have not found the plans submitted by the parties to be workable school desegregation plans. Therefore I can recommend only portions of those submissions for implementation in 1989-90 and we are forced to await the formulation of a “complete desegregation plan” by a newly appointed metropolitan desegregation authority. FINDINGS OF FACT The Long-Range Plan(s): 1. The parties were directed to submit the final draft of long-range plans no later than September 30, 1988. In an effort to ensure that the parties spent time on task, they were required to submit a preliminary draft several weeks before the September 30 deadline. 2. Following submission of the preliminary draft the parties were informed of the need for greater detail and clarity in several areas. 3. A long-range plan was submitted on October 3, 1988 (“October Plan”). 4. Both LRSD and PCSSD were directed to hold public meetings to gather community reaction, suggestions and input. In order to ensure compliance, the districts were required to submit summaries of their public meetings. 5. The October Plan, which was summarized and publicized for public meetings included the following: a. The proposal to add a new wing to Franklin Elementary School to allow Franklin to house students affected by the closing of King Elementary School. The plan added: “It is by no means certain, however, that all or even most of the King students will be reassigned to Franklin in 1989-90.” b. They proposed the construction of a new Washington Elementary school to serve as a 600-seat Interdistrict Magnet School. A tridistrict survey was to be conducted in October 1988 to determine a theme. Washington’s location was represented to be a “major asset to its ability to attract white students.” The LRSD students who live outside of Pulaski County, but did not present a plan to do so. c. Mitchell Elementary was proposed as an Intradistrict Magnet (restricted to LRSD students). d. Rockefeller was also proposed as an Intradistrict Magnet. “Final” selection of the theme for Rockefeller was to be determined from the tridistrict survey. e. LRSD proposed to close Ish as an elementary school after the 1988-89 school year and reopen it as an early childhood center. The plan noted: “The Eighth Circuit Court of Appeals views early childhood education as an important component of a comprehensive desegregation plan. It is believed that early intervention will nullify the need for compensatory/remedial programs in the higher grades.” f. Gibbs International Studies Magnet was proposed to be reorganized as a K-3 I/S Magnet. g. Rightsell Elementary was proposed as the grade 4-6 complement to Gibbs. h. Dunbar Junior High School was proposed to have an International Studies school-within-a-school. i. A new Stephens school was to open for the 1990-91 school year at a new location “due west of and adjoining the Capitol Hill Complex,” as an Interdistrict Magnet, with a 600-seat capacity, but no precise location was identified. j. A new King Elementary school was to open in 1990-91 as an Interdistrict Magnet School. The plan indicated that the new King Elementary school would be located in the “general area” bounded by 1-630, Chester Street, 9th Street and Center Street, but no precise location was ever identified. k. The plan proposed the use of attendance zones for all the non-magnet, “non-enhancement” schools so that “most neighborhoods” would be able “to attend a particular school as a group.” l. Eight Kindergarten through grade six Incentive Schools were proposed: Carver (in the building abandoned when new Carver Magnet was built), Franklin, Garland, Ish (also inconsistently proposed as an Early Childhood Center), Mitchell (also inconsistently proposed as an Intradistrict Magnet School), Rockefeller (also inconsistently proposed as an Intradistrict Magnet School), Rightsell (also inconsistently proposed as the 4 — 6 International Studies Magnet School), and Stephens (also inconsistently proposed as an Interdistrict Magnet School). m. Kindergarten students were to be excluded from the mandatory attendance plan with the words, “neighborhood kindergarten assignments will be made with the full understanding of where these students will attend school in the first grade.” 6. The October 1988 Plan also included the following disclaimer: “The uses described above for Washington, Mitchell, Rockefeller, Ish and Rightsell may change if those schools are needed to house enhanced schools.” 7. In October, the parties asked for an initial reaction and were informed that, while many of the general concepts were acceptable, the “plan” was not a “plan” but rather “a plan for a plan” and could not be recommended until the parties set forth the “operational details” and resolved the inconsistencies. The parties were advised to take the October “plan for a plan” to their patrons for discussion and input, and to resubmit a detailed plan. 8. Public, on-the-record hearings on the October submission, as revised, were scheduled for January 5 and 6, 1989, then were rescheduled for January 12 and 13, 1989, at the request of PCSSD so that PCSSD could complete the required public meetings. 9. On January 5, 1989, the parties were informed, on the record, that the undersigned would make on-site visits to all proposed school sites and that at least one representative from each party should go along so that questions concerning locations and programs could be answered. The parties still had submitted no written plan since the October “plan for a plan.” 10. On January 6, the undersigned, along with at least one representative of every party, began a tour of sites proposed under the October submission. 11. The parties were unable to locate the site proposed for either Stephens or King. The parties indicated that one of the lawyers, then residing in Pittsburgh, Pennsylvania, was the person who really knew where the proposed schools were to be located. 12. Representatives from Joshua Inter-venors and LRSD disagreed about how students were to be assigned/recruited to the Incentive Schools. The parties were told to come to some agreement or present position papers. Later in the week, Joshua Intervenors and LRSD presented opposing positions as to how Incentive Schools should be populated. The Incentive School Education Program still was not described with detail. 13. Later, on January 6, the parties were presented a list of questions concerning the inconsistencies, double designations of schools, etc., in the October Plan, and cautioned that patrons were likely to raise the same questions in the up-coming public hearings. 14. Public hearings were held on January 12 and 13, 1989. The transcripts of those public hearings, in which patrons, citizens and all who were interested were invited to make public comment on the plan, are being submitted with this recommendation, along with all of the other transcripts, in compliance with Fed.R.Civ.Proc. 53. 15. LRSD asked that they have until January 30, 1989 to submit their “final plan.” PCSSD asked that they be given two weeks after the LRSD submissions to submit “final plans,” since the plans were interrelated. These requests were granted. 16. The LRSD delivered another plan the first week in February, dated January 31, 1989 (January Plan). 17. Highlights of the January Plan are as follows: a. Rockefeller was to be an Incentive School. b. Rockefeller was to be an Interdistrict School “if LRSD and PCSSD agree.” c. The Home-Mart building in West Little Rock was to be an Interdistrict School. d. Romine (in LRSD) and Baker (in PCSSD) were to be paired. The January Plan listed five “options” for the Ro-mine/Baker pairing. e. Dunbar Junior High was described in “three scenarios” which included the following possibilities: an Intradistrict Magnet, an Interdistrict Magnet, or mandatory attendance zone assignments with an enhanced educational program. f. Washington was proposed as a 1050 seat elementary school (the October plan had proposed 600 seats). 18. The parties were given a nine-page list of questions and concerns about the LRSD January Plan in early February. 19. On February 15, 1989 the parties presented an “Interdistrict Plan” (February Plan) which proposed that the following schools become Interdistrict Schools: Baker (In PCSSD), Harris (PCSSD), Ro-mine (LRSD), Stephens (LRSD), Crystal Hill area (PCSSD), and King (LRSD). 20. The February plan proposed that students residing in the host district of an Interdistrict School be mandatorily assigned, and that students living outside the host district be recruited. 21. The February Plan proposed that “[t]he Interdistrict Schools [ ] be populated primarily by black students from LRSD and by white students from PCSSD or beyond Pulaski County.” 22. The February Plan stated that all parties had as a “high priority” the elimination of educational achievement disparities between black and white children. The plan further states that each district “shall devise its own plan for eliminating disparities. ...” 23. On March 23, 1989, another “final plan” was submitted. 24. The March 23, 1989, plan contained a number of proposals which were unclear, confusing and undeveloped, including, inter alia: a.The Elementary Academies were proposed to “establish a racial balance at each school of 55% black and 45%