A federal judge said Wednesday that he will privately review state documents that are at the center of a discovery dispute between the state and the Little Rock School District in their preparation for a Dec. 9 desegregation-case court hearing.
The documents - to be provided under seal to the judge - include an attorney general’s office file on a financial analysis of the Little Rock School District done by Navigant, a New York company. Navigant, hired by the attorney general’s office in 2010, was charged in part with determining how each of the three Pulaski County school districts was spending state desegregation aid.
Navigant reports on the North Little Rock and Pulaski County Special school districts were publicly released in 2011, but the company’s findings on the Little Rock district were never distributed, and the attorney general’s office has declined to release the Little Rock analysis and related correspondence. The attorney general’s office considers those to be working papers that are not subject to requests for public release.
Also to be submitted to the judge are one or more spreadsheets and related correspondence produced by the Bureau of Legislative Research regarding the effect of a one-time proposed change in state funding for student transportation on Arkansas school districts.
U.S. District Judge D. Price Marshall Jr., who is the presiding judge in the 30-year-old Pulaski County school desegregation lawsuit, asked Wednesday for the sealed documents to be sent to him by Monday. He said he would quickly review them and issue a decision on whether the information must be turned over to the school districts.
“I want to look at all those things and weigh the issue,” Marshall said about the attorney general’s documents in particular at the end of a three hour meeting with attorneys. “I am pulled in both directions because I understand, I believe, the district’s need for this … and at the same time, I’m concerned … about looking into the attorney general’s file.”
The state has asked to be released from a 1989 settlement agreement in the desegregation case. The settlement requires the state to pay about $70 million in annual desegregation aid to the three districts. The districts are opposing the state’s release from the 1989 agreement. A two-week court hearing on the state’s motion is set to begin Dec. 9.
The districts have argued that the special Navigant studies constitute retaliation by the state against the districts for their receipt of state desegregation aid. That purported retaliation is a violation of the state’s obligation to comply with the 1989 settlement agreement in good faith, attorneys for the districts say.
Assistant Attorney General Scott Richardson argued to the judge Wednesday that releasing the attorney general’s working papers will set a “very bad precedent” and affect the attorney general’s ability to effectively represent state agencies, such as the Department of Correction, in other lawsuits.
Similarly, the release of the Bureau of Legislative Research’s working papers has political ramifications for the next legislative session, Richardson said.
Marshall told the attorneys Wednesday that the Navigant issue “is close to the bone” for their clients and he asked them to set aside hurt feelings and anger over it in the legal discussion.
“I’m conscious of the federalism concerns here of a federal court directing a state constitutional officer to turn over his working papers. That is grave,” Marshall said. “At the same time, I am struck by the fact that the Navigant study and its results - or at least some of them - were made public. That has to weigh in the balance.”
Clay Fendley, an attorney for the Little Rock School District, told the judge that the district initially resisted the Navigant review but Act 701 of 2011 compelled the district to submit to it or face penalties that included a takeover by the state.
Fendley said the Navigant audit of the Little Rock district was done at a time when there was a “stay” or a hold on all discovery in the long-running desegregation lawsuit. Therefore, he said, any information gleaned by the state from the never-released analysis is not supposed to be used to prepare for litigation.
The Navigant studies of the Pulaski County Special and North Little Rock districts concluded that the districts used desegregation aid for purposes other than specific desegregation programs, and the attorney general said there was “no clear-cut accounting of how the districts spend” the money.
Fendley said the 1989 agreement did not require that the money be used exclusively for desegregation programs, nor did the negotiated agreement require the state to monitor the expenditures.
Stephen Jones, an attorney for the North Little Rock district, said the Navigant studies are a “window to the state’s mindset” in the desegregation case and “it is not a pretty picture.” He also said the state can’t use the Navigant studies as both a sword and a shield. He questioned whether the audits contributed to the state’s placing the North Little Rock and Pulaski County Special districts in fiscal distress in 2011.
Sam Jones, an attorney for the Pulaski County Special district, questioned whether the Navigant work turned up something that would have some bearing on the case at hand.
John Walker, who represents black students in the three school districts and sometimes aligns with the school districts in cases against the state, objected to the failures in the districts to tie the desegregation aid to compensatory education programs.
“I take issue with the districts and express disappointment the student achievement in the districts is as dismal as it was 20 years ago,” Walker said.
In response to a question from the judge, Richardson described the Navigant work on the Little Rock district as an “analysis” that is not as fully developed as the reports that were done on the North Little Rock and Pulaski County Special districts.
Richardson argued that there were no consequences to the districts as the result of the Navigant studies except for a “bad day in the press.”
He said the districts are trying to fill a “giant hole in the proof” against the state’s compliance with the 1989 agreement.
Fendley argued that the state has been found to be a “constitutional violator” and is under the federal court’s jurisdiction. To be relieved of that, he said state leaders must show good faith.
“There is no hole. We have nothing to prove,” Fendley said. “The state has to prove good faith. “
Arkansas, Pages 9 on 10/31/2013