Let state out of school case, court is urged

LITTLE ROCK — The state has substantially complied with its obligations under a 1989 Pulaski County school desegregation case settlement - including total payments of more than $1 billion in desegregation-related aid - and is now entitled to release from those obligations, the attorney general’s office said Monday.

Attorney General Dustin McDaniel and Assistant Attorney General Scott Richardson submitted the motion for release from the 23-year old settlement agreement to U.S. District Judge D. Price Marshall Jr.

“In those two decades the education system in Arkansas and Pulaski County has changed dramatically,” the state attorneys wrote in a 40-page legal brief to the judge.

“These changes are sufficient to warrant release of the 1989 Settlement Agreement. It is time to end the 1989 Settlement Agreement and the desegregation litigation that has embroiled Pulaski County and the state of Arkansas for nearly 60 years,” they wrote.

The motion for release comes in the aftermath of the 8th U.S. Circuit Court of Appeals’ Dec. 28 decision that denied the state’s release from many of its desegregation funding obligations in the absence of a formal motion for release and a court hearing on the evidence.

The motion comes in advance of a 10:30 a.m. Thursday hearing before Marshall on accusations by the Little Rock School District and black students known as the Joshua intervenors that the state violated the 1989 settlement by approving independently run open-enrollment charter schools in Pulaski County without regard to the effect on desegregation efforts in traditional public schools and by failing to address a long-standing black-white student achievement gap.

Attorneys for the 12 open enrollment charter schools in Pulaski County, including the Arkansas Virtual Academy, had hinted earlier this month to Marshall that the state request for release was forthcoming.

The charter school intervenors proposed to the judge that he delay the charter-school decision until his decision on any request for release from the 1989 agreement. If the state is released from the settlement, the state-approved, publicly funded charter schools would no longer pose a possible conflict with the settlement requirements.

The 1989 settlement has served as the basis for special desegregation funding to the Little Rock, North Little Rock and Pulaski County Special school districts.

That funding, which is about $70 million a year, helps finance Little Rock’s six original magnet schools, the majority-to-minority interdstrict student transfer programs, employee health and retirement costs, and general operating expenses. The magnet schools and majority-to-minority student transfer program in particular were designed to promote racial desegregation of schools and the districts.

McDaniel and Richardson told the judge that the Little Rock and North Little Rock school districts have achieved unitary status and have been released from federal-court monitoring. The Pulaski County Special district has been declared partially unitary.

“The magnet and M-to-M programs exist to assist in racially balancing the school districts. Every school district has been released from the obligation to racially balance their schools,” the state attorneys wrote.

The state attorneys noted that the six Little Rock magnet schools - Booker, Carver, Gibbs and Williams elementaries, and Mann Middle and Parkview High - require a 50 percent to 55 percent black enrollment. The Little Rock district manages that racial balance by denying black students admission to the special program schools unless there are nonblack students also available to enroll.

“The 1989 Settlement Agreement requires what was prohibited fifty years ago: exclusion of black children from LRSD schools solely because they are black,” the attorneys wrote and also noted that recent U.S. Supreme Court decisions restrict the use of race-based student assignments to schools.

“The magnet and M-to-Mstipulations serve now to limit opportunities to students,” the state attorneys added. “They do not further any interests that are not adequately protected by state law.”

The $70 million a year isn’t helping the Pulaski County Special district, the only district not declared unitary, to meet its obligations, the state attorneys said. There is “no convergence” between the Pulaski County Special district’s desegregation obligations and the state’s obligations under the 1989 settlement, they said.

“The 1989 Settlement Agreement only serves to perpetuate this litigation without remedying any of the remaining desegregation obligations,” they wrote.

Release from a settlement agreement, the state attorneys argued, is not “the touchstone of consent decree release decisions” and said that changes in circumstances can warrant release.

They cited the Horne v. Flores decision in which the U.S. Supreme Court found in the Arizona case that “‘a court abuses its discretion when it refuses to modify an injunction or consent decree in light of such changes.’”

Those changes in Arkansas, McDaniel and Richardson wrote, include a greatly enhanced quality of public education system over the past 20 years. State funding has increased by millions of dollars to public school districts, and instruction and accountability measures have improved.

Those include the state testing program, the state computer system used to track student records and school spending, the federal No Child Left Behind Act, as well as the implementation of both school and student improvement plans.

School district representatives reacted with some concern to the state’s motion for release.

State-appointed Superintendent Jerry Guess of the Pulaski County Special School District said his district - which is operating under state control because of financial mismanagement in the past - is committed to achieving unitary status. However, he urged that the state desegregation money not be discontinued immediately.

“We agree that funding associated with desegregation programming and services should be withdrawn,” he said, “but in a descending funding stream over a period of years.”

Chris Heller, an attorney for the Little Rock School District, which receives about $40 million a year in state desegregation aid, said Monday that “the State’s brief is wrong on the facts and the law.”

In a memorandum to Little Rock School Board members, Heller said that the state was labeled a “constitutional violator” as recently as last December by the 8th U.S. Circuit Court of Appeals in St. Louis.

The 8th Circuit said that “a constitutional violator seeking relief from its desegregation obligations must show both that it has complied in good faith with the decree since it was entered and that it has eliminated the vestiges of its past discrimination to the extent practicable,” Heller said.

“The State has violated the Settlement Agreement about five times since it was entered,” Heller continued, “and does not even argue that it has eliminated the vestiges of its unconstitutional conduct. Instead, the State argues for a ‘flexible standard’ that would avoid any line by line analysis of the Settlement Agreement and the State’s record of compliance.”

Matt DeCample, a spokesman for Gov. Mike Beebe, said on Monday that the governor supports the request for release from the settlement agreement.

As a legislator, Beebe voted for the agreement in 1989 when it was presented to the General Assembly.

“Yes, he supported the settlement,” DeCample said, “but now that we are more than 20 years in, he feels that it has come to a point where it either has or hasn’t worked, and it’s time to move on to the next step.”