Wednesday, December 28, 2011

8th Circuit orders state desegregation aid to continue

Posted By on Wed, Dec 28, 2011 at 10:58 AM

ORDER VACATED: Judge Brian Miller overturned on end of state desegregation payments.
  • ORDER VACATED: Judge Brian Miller overturned on end of state desegregation payments.
It had tipped its hand clearly earlier with a stay of the order, but the 8th Circuit U.S. Court of Appeals finished the job today of undoing Judge Brian Miller's unexpected and peremptory order ending state desegregation funding to the Little Rock School District.

Here's the opinion.

The attorney general's office earlier was obliterated in oral arguments on the case.

State legislators hungering after the money — some $70 million a year — to shore up a pinched state budget will have to wait a bit longer. The payments have been made since a historic court-approved agreement between the state and school districts in 1989. The state is paying for years of fostering segregation in Pulaski County.

The appeals court noted that Judge Miller had ordered funding to halt even though the state had not requested it and the judge made no findings of fact to support the decision. It also said it had some sympathy for Miller's view that districts had an incentive not to comply if it meant continued state money. But it wrote: "Nevertheless, notice and a formal hearing are required before the court terminates a constitutional violator’s desegregation obligations."

If the state wants to end funding, there must be a formal hearing, the court emphasized. "We express no opinion on what the outcome of such a hearing should be. In the absence of these procedures, the portion of the district court’s order terminating the State’s funding obligations under the 1989 Settlement Agreement is vacated."

Might I add, again, that it is time for the state and school district to work out a phased-out end to the spending, perhaps with some state promises to follow the law and constitution and not directly encourage segregation within Pulaski County through charter schools that encourage racial and economic division. Said Attorney General Dustin McDaniel:

The State continues to move positively toward ending this litigation and taking the courts out of the classrooms of Pulaski County.

With the Little Rock and North Little Rock school districts now fully unitary, today’s decision reminds us that taxpayer-funded desegregation payments are not perpetual, nor should they be seen as such. 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.

Gov. Mike Beebe's office said there was nothing surprising in the decision, though they were pleased at the speed with which it was delivered. "It will allow the state to proceed more quickly on the issues remanded back to district court," Matt DeCample said.

UPDATE: See the jump for a comment by Chris Heller, attorney for the Little Rock School District, who believes the opinion makes clear that the state will face a significant burden of proof in arguing for an end to magnet school and other interdistrict remedies for its wrongs.

Politics will get fierce. For example, the state could get out from under running the failing Pulaski school district by by busting it up between Little Rock and North Little Rock, with a separate Jacksonville district created as local people have long wanted.

Today's order was significant on two other fronts. It upholds denial of unitary status — or a finding of full desegregation — for the Pulaski County School District and reversed denial of unitary status for North Little Rock. NLR now joins Little Rock as fully desegregated in the eyes of the federal courts. (The Little Rock argument continues on whether the state has a lasting commitment to interdistrict magnet and transfer programs regardless.)

North Little Rock had been found in compliance in all but keeping adequate records of effort to recruit minority teachers and administrators. The 8th Circuit said Judge Miller had abused discretion in adding additional record-keeping requirements for two years and said North Little Rock had made a good faith effort to recruit minority staff, even if the percentages had declined over the years.

That leaves only Pulaski County — currently in trusteeship operation by the state — as lacking unitary status among the three Pulaski school districts. It has a long way to go. The 8th Circuit upheld a finding of lack of unitary status in nine separate areas: (1) student assignment, (2) advanced placement, gifted and talented, and honors programs, (3) discipline, (4) school facilities, (5) scholarships, (6) special education, (7) staff, (8) student achievement, and (9) monitoring.

Comment in memo to School Board from Chris Heller:

The Eighth Circuit decision I sent you this morning not only vacated the the order which ended magnet funding, but also set the course for any future issues that might come before the district court. As the Eighth Circuit noted, the State has never filed a motion seeking to modify or terminate its obligations under the 1989 Settlement Agreement. If it does file such a motion in the future, the district court will be required to conduct a "formal evidentiary hearing...followed by comprehensive and detailed findings of fact and conclusions of law". This is so because "notice and a formal hearing are required before the court terminates a constitutional violator's desegregation obligations."

The Eighth Circuit also made clear what proof the State, or any other constitutional violator, would have to present at such a hearing: "A constitutional violator seeking relief from a desegregation plan adopted as a consent decree must show both that it "complied in good faith with the desegregation decree since it was entered" and that "the vestiges of past discrimination have been eliminated to the extent practicable."

The State has argued that magnet school funding and other desegregation funding should end when all three Pulaski County districts are unitary, even though no such limitation on funding is found anywhere in the Settlement Agreement. The Eighth Circuit decision contains helpful language that should guide the district court in evaluating the State's argument ("We discern the parties' intent from the unambiguous terms of the written consent decree, read as a whole."; "A court should interpret a consent decree as written and should not impose terms when the parties did not agree to those terms."; "A court may not replace the terms of a consent decree with its own....").

The Eighth Circuit opinion also helps with regard to two other issues concerning the State. First, it distinguishes between the "intradistrict" issues which were the subject of the NLRSD and PCSSD unitary status hearings, and the "interdistrict remedy" for which the State is responsible. Second, the language in the Eighth Circuit's opinion concernig PCSSD's failure to "design, select and implement specific intervention programs" to decrease the achievement disparity could be applied to the State's efforts as well.

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