Court: School deal due a try

John Walker, the lead attorney for black students known as the Joshua intervenors, talks to reporters Friday about the possible settlement in the Pulaski County school-desegregation case after a hearing in federal court in Little Rock.
John Walker, the lead attorney for black students known as the Joshua intervenors, talks to reporters Friday about the possible settlement in the Pulaski County school-desegregation case after a hearing in federal court in Little Rock.

U.S. District Judge D. Price Marshall Jr. granted preliminary approval Friday to a tentative settlement that would end state desegregation aid to the three Pulaski County school districts in 2018.

Document set

School districts takeover and desegregation

In a two-hour meeting with attorneys for the state, school districts and the intervening parties, the judge set a Dec. 23 deadline to take written comments about the proposed settlement, and he scheduled a Jan. 13-14 “ fairness hearing” to hear any objections to it.

Public notice about the proposed settlement and the fairness hearing are prerequisites to the judge’s making a final decision on the proposed agreement in the decades-old class-action lawsuit.

“Taken as a whole, the proposal is within the range of reasonable solutions, and I tentatively approve it,” Marshall said from the bench after going section by section through the seven-page agreement and asking attorneys questions about the different provisions.

“I underscore that this is not a final approval from the court. I have to decide whether the proposal is fair, reasonable and adequate [under federal court rules],” he said. “That is a matter of proof at the fairness hearing … as well as consideration of any objections that might be filed to the proposal.”

The tentative settlement is meant to resolve the state’s 2012 motion for release from a 1989 settlement that obligated the state to pay desegregation aid to the Little Rock, Pulaski County Special and North Little Rock school districts. That special funding - used primarily to support magnet schools, majority-to-minority interdistrict student transfers, and teacher insurance and retirement costs - has grown to nearly $70 million a year.

The 1989 agreement included no ending date for that money. The attorney general’s office on behalf of the Arkansas Department of Education had argued that the desegregation funding should be terminated immediately as the Little Rock and North Little Rock districts have been declared unitary and released from court supervision of their desegregation efforts, and the Pulaski County Special district is supervised in only a few areas.

The attorneys for the state, districts and the Joshua intervenors, who represent black students in the districts, along with the Knight intervenors, who represent the employee unions in the districts, negotiated the tentative agreement in advance of a scheduled Dec. 9-20 court hearing on the state’s motion for release.

Marshall on Friday rescheduled that December hearing for March 17-28 in the event that he does not ultimately approve the tentative settlement.

The proposed settlement would provide the districts with continued state desegregation aid totaling $65.8 million a year in each of the 2014-15, 2015-16, 2016-17 and 2017-18 school years. In that final 2017-18 school year, the money can be used only for construction of new and renovated school facilities.

Current magnet school and majority-to-minority transfer students would be able to remain in their current schools until they complete all the grades, but no new applications will be accepted under the current enrollment process, according to the settlement. The state would give the districts more than 200 state-owned school buses to continue the transportation services for magnet schools and majority-to-minority transfer students.

The Little Rock district and the Joshua intervenors will give up their legal challenge at the 8th U.S. Circuit Court to state-approved charter schools in Pulaski County if the settlement is finalized. The state would be authorized to take steps to create a new Jacksonville school district but would oppose efforts to form other new districts in Pulaski County until the Pulaski County Special district is declared unitary by the federal court.

The settlement also provides for the payment of legal fees by the state in the amounts of $250,000 to each school district, $75,000 to the Knight intevenors and $500,000 to the Joshua intervenors.

Marshall said he found the proposed settlement to be within the range of reasonable solutions for several reasons.

“The proposal shows what I believe to be hard bargaining by good and experienced lawyers. It does not have any hallmark of collusion or special dealings,” he said, adding that he was aware of the meetings of school boards and legislative committees and of the governor’s involvement.

“All of this has been done in a very public way to try to craft some resolution of this thicket of litigation,” he said.

Marshall said the settlement gives no favorable treatment to the named members of the classes in the class-action lawsuit, in contrast to cases where the named members of the classes do receive an extra benefit.

Regarding the lawyers’ fees, Marshall said they appear “to be anything but excessive” for the school districts. The fee amounts for the districts are rooted in a 2007 state law that offered state payment of the legal fees in return for the districts receiving unitary or partial unitary status from the courts. Marshall said the fees to be paid by the state to the intervenors also appear to be reasonable and were secondary in the negotiations - not the focus of the settlement talks.

“There is nothing that troubles me about the fees,” he said, adding that ultimately the fees are subject to court approval.

“I see no glaring substantive or procedural defect or deficiency in the proposal,” Marshall said and highlighted that the attorneys “were of the same mind” that the federal court has ongoing jurisdiction to enforce any agreement that is ultimately approved.

That applies to a separate agreement between the Pulaski County Special School District and the Joshua intervenors, he said. That “transitional agreement” addresses the steps the Pulaski Special district will take to attain unitary status in areas of its operation such as equalizing of the disparate condition of the district’s school facilities. The transitional agreement says that any disputes between the Pulaski County Special district and the Joshua intervenors will be referred to a federal magistrate judge.

That was a comfort to Marshall, who said it would concern him if the tentative settlement didn’t mention the Pulaski County Special district’s lack of unitary status or if it purported to settle that issue without saying anything else.

“What I see here is ongoing work on that branch of the case and a good-faith commitment to continuing to make progress,” Marshall said.

Marshall directed the attorneys for the state, districts and intervenors to present to him by the close of business Monday the draft notice the parties will distribute to the public about the tentative settlement, the deadline for submitting written comments about it to the U.S. district clerk and the fairness hearing in January.

“You all know my views about the importance of the written word and how it should be plain and clear,” Marshall said. “I think those values are particularly important in crafting the notice. It should be short. It should be sweet. The sentences should be plain so that if a middle-school student picks up a piece of paper, they ought to understand what the parties are contemplating.”

Senior Assistant Attorney General Scott Richardson said the attorneys are contemplating a short notice that would summarize the settlement and refer readers to more information, including the full settlement, on websites operated by the state agencies and the school districts.

Attorneys for the districts told the judge that the districts have ways of communicating with parents through their public-access television channels, as well as automated telephone and email notification systems.

“Every school has a way of communicating with its parents that is something beyond a note in the backpack,” Little Rock School District attorney Chris Heller said.

“We could even go so far as to encourage people to ‘like’ or ‘not like’ on Facebook,” Sam Jones, an attorney for the Pulaski County Special district, said to laughter.

“You do what you want from the district to take the temperature of the patrons,” Marshall said and encouraged the parties “to spread the word far and wide” about the settlement, the Dec. 23 comment deadline and the Jan. 13-14 fairness hearing date.

John Walker, the attorney for the Joshua intervenors, questioned who would be eligible to object to the settlement, saying that students and teachers would be the ones because they are members of the classes represented in the class-action suit. He said he didn’t think it would be the appropriate time, for example, for those who would favor forming new school districts in the county to speak.

Marshall said a strict interpretation of the court rules would limit objections to those in the classes, but he said the tentative settlement does include other issues, such as the creation of a Jacksonville district. He said he wouldn’t take a firm stand on who can object and will instead wait to see who does object.

“I’m not prepared to close the courthouse door on an issue of this magnitude,” he said. “Anyone who has an objection can object, and we’ll see who wants to be heard. If necessary I’ll decide how to limit that.”

Marshall ended the hearing Friday by commending the attorneys and their clients for their hard work in recent weeks to reach a solution to the issue.

“Settlements are favorites of the law,” Marshall said and added that an such an agreement in the matter as significant as public education holds great hope and promise.

“We are not done. This is not the end, but I am hopeful that this may be the beginning of the end,” he said.

Front Section, Pages 1 on 11/23/2013

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