LITTLE ROCK — Attorneys for the state of Arkansas on Friday defended to the 8th U.S. Circuit Court of Appeals a district judge’s May 19 order ending most state desegregation aid payments to the three Pulaski County school districts - aid that has totaled more than $1.05 billion since 1989.
Arkansas Attorney General Dustin McDaniel and Assistant Attorneys General Scott Richardson and Ali Brady asked the appeals court to affirm U.S. District Judge Brian Miller’s decision to partially relieve the state’s funding obligations in the long-running Pulaski County school-desegregation lawsuit.
The state also asked the appeals court to reverse Miller’s decision to withhold unitary status from the North Little Rock and Pulaski County Special school districts.
The state’s attorneys argued that conditions have changed since the state desegregation payments began,that the three districts are unitary in most aspects of their operations and that the districts are well-positioned to operate without the special funding.
That funding, which now totals about $70 million a year, is used by the districts for magnet schools, teacher retirement and health-insurance benefits, and general operating expenses.
The state brief was submitted to the 8th Circuit in response to appeals filed earlier this summer by the Little Rock, North Little Rock and Pulaski County Special school districts challenging Miller’s order.
Also on Friday, attorneys representing the black students known as the Joshua intervenors submitted a brief to the 8th Circuit disputing assertions by the North Little Rock and Pulaski County Special districts that they are unitary and should be released from federal court supervision.
The brief, filed by a team of attorneys including staff from the NAACP Legal Defense and Education Fund Inc., urged the 8th Circuit to affirm Miller’s partial denial of unitary status to the two districts.
Oral arguments in the high-stakes set of appeals on state funding and unitary status are set for 2 p.m. Sept. 19 in St. Louis.
“The school districts now appeal, raising various arguments all based on the theory that protracted legal proceedings should continue, despite the unitary status of the vast majority of school operations in Pulaski County,” the state attorneys wrote Friday.
“The districts also argue that they should continue to receive payments of $70 million each year as long as the case continues. Judge Brian Miller properly rejected these contentions, and this Court should affirm. This iteration of this case has been pending for 29 years.
“When it first began no school district in Pulaski County was unitary. Now the districts are almost there. Release of the State’s funding obligations will ensure that the districts have the incentive to finish the job of desegregating.”
The state desegregation aid is paid to the districts as the result of a 1989 financial settlement negotiated among the state and three districts. That settlement, approved by the court, is a consent decree.
The state attorneys said a district judge’s modification or termination of a consent decree is subject to review by the appeals court for abuse of discretion. A district court judge abuses his discretion “only when its judgment is based on clearly erroneous factual findings or erroneous legal conclusions.”
The 8th Circuit can affirm the lower-court decision “on any ground supported by the record, even if the issue was not pleaded, tried or otherwise referred to,” the state attorneys said, citing a 1982 8th Circuit decision in an unrelated case.
Further, the state attorneys said desegregation decrees “are only a temporary measure to remedy past discrimination, and once a Constitutional violation is remedied, control of children’s education must be returned to the local school officials and the state.”
As for the desegregation funding, the state’s attorneys said that it provides a “ substantial disincentive to attainment of unitary status and an equally large incentive to prolonging the litigation by whatever means possible.
“The actions of the school districts clearly support Judge Miller’s decision to release the state’s funding obligations in order to motivate the parties to achieve unitary status for the benefit of their students as quickly as possible,” they wrote.
The Little Rock district, which attained unitary status in 2007 and is taking the lead for the three districts in their appeals on the state funding issue, argued earlier to the 8th Circuit that Miller ended most of the state desegregation funding without notice or an evidentiary hearing.
Chris Heller, an attorney for the school district, said late Friday that the state’s brief “misrepresents many of the positions we have taken in this case ... as well as much of what happened in the district court.”
Heller said the state’s attorneys were incorrect in saying the Little Rock district is seeking “perpetual” state payments and that the district opposed the Pulaski County Special district being declared unitary.
The state’s attorneys said an evidentiary hearing is not always required for modification or termination of a consent decree, nor does a judge need a motion from the parties in a case to end supervision of a consent decree.
Even in the current desegregation case, the state was ordered by a judge to provide extra funding to the three school districts for teacher retirement and health-insurance benefits without a court hearing, the state’s attorneys said. That decision was affirmed by the 8th Circuit. The districts have now received more than $200 million in those payments over 13 years.
The state attorneys also said Miller - who has since stepped down as the presiding judge in the desegregation case - gave the parties notice that he was considering the issue of state desegregation aid. In July 2009, the judge asked the parties in the case and the state to identify the impediments to unitary status. Attorneys for the state responded that the continued desegregation aid was a motivation to the districts to avoid achieving unitary status.
The state attorneys said the districts had the opportunity to defend the continuation of state desegregation aid during the 28 days of court hearings that Miller held in early 2010 on unitary status in the North Little Rock and Pulaski County Special districts.
“He allowed all parties and the state to participate and make whatever record they deemed necessary,” the attorneys said about Miller.
The attorneys disputed the Little Rock district’s assertions that the state has repeatedly violated the 1989 agreement, saying the state was never found to be acting in bad faith and that the state had complied with every court order entered.
They argued that “almost all of the original goals of this case have been achieved,” and they cited as evidence the racial makeup in the districts, the operation of magnet schools and the majority to-minority student transfer program, and the fact that student assignment plans in the districts have been declared unitary and released from court monitoring.
“Principally, the purposes of much of this litigation has now been satisfied,” they wrote. “For these reasons, the District Court correctly released jurisdiction over the certain funding requirements of the 1989 Settlement Agreement.”
The state’s attorneys said the districts’ failure to prepare for the end of the funding is no reason not to end the aid, but they added that it was unlikely that the Little Rock district would be forced to close schools or institute a mass layoff of teachers.
“With proper management of its resources LRSD can continue to educate all of its students without resorting to the drastic measures threatened in” previous court documents, the state attorneys wrote. The districts will continue to receive about $21 million a year in state desegregation aid for interdistrict student-transfer programs, the state said.
The Little Rock district, which has an excess of $19 million in reserves, received $9,396.52 per student from unrestricted state and local revenue sources, nearly $2,000 more per student than the state average of $7,489.44, the attorneys said. The district in 2009-10 spent only 53 percent of its total unrestricted revenue and 32 percent of its total revenue on classroom instruction, they added.
The North Little Rock and Pulaski County Special school districts are appealing Miller’s May 19 finding that the two districts are only partially unitary and must remain under federal court supervision regarding portions of their desegregation plans.
The attorney general’s office supports the districts’ call to be released from court supervision, saying Miller made “a mistake of law” that caused the judge to focus “on the wrong question in deciding whether to terminate the court-ordered desegregation plans in this case.
“While a consent decree may be enforced as a contract, according to its terms, it must be treated as a judicial decree and terminated when the constitutional violation that gave rise to the decree is eliminated,” the state’s attorneys wrote.
“The district court did not apply this principle in evaluating aspects of NLRSD’s and PCSSD’s unitary status. As a result the districts should have been declared unitary in more areas than they were.”
The attorneys for the black students known as the Joshua intervenors argued to the contrary, saying a review of the extensive record in the case “clearly supports the district court’s judgment that neither school district demonstrated ‘full and satisfactory compliance’ with the decree to which each was subject.”
“To put it plainly, to the extent that PCSSD has sought to comply at all, it is simply done too little, too late to justify release from the court’s supervision,” the Joshua attorneys said. The cumulative effect “of its ongoing non-compliance indicates that it has not fulfilled its constitutional obligations.”
The Joshua attorneys disputed the North Little Rock district’s argument that Miller applied a standard that went beyond the terms of the district’s desegregation plan in regard to documenting its teacher-recruitment efforts.
“NLRSD did not prove that it was unitary with respect to teacher and staff recruitment, per the terms of its own plan,” the Joshua attorneys said.
Front Section, Pages 1 on 09/03/2011