*1 Joyce Person; Taylor; Int’l. Brian Hilton Agreement between arbitration. Structural, Ornamental, Taylor; Taylor; Parsha Robert Will Bridge, Ass’n Tonya Ironworkers, ingham; Willingham, Ap Reinforcing Shopmen’s Corp. pellants. Con- Local # 493 and EFCO and/or (1998-2000) Prods., Inc. at Sec- struction 02-3867EA, No. 03-1147EA. 20(A). Thus, dis- it is clear-
tion grievance gone through that has pute Appeals, United States Court of an may brought be before arbi- procedure Eighth Circuit. if party, proper
trator dissatisfied Sept. Submitted: Further, it is clear steps are followed. concerning a Union mem- grievance that a 2, Filed: March agree- dismissal is covered ber’s clarity, CPI Notwithstanding this ment. to avoid the fact that the issue
attempts procedural one for the arbitrator
hand is the “substantive issue”
by arguing “the timeliness of the Union’s
involved is intent to arbitrate the under-
notice its Appellee Brief of at 5.
lying grievance.” question no avail: the of whether
This is to procedural prerequisites been or, alleges, as the Union
complied practice is a prior
waived because of CPI’s not for the
matter for the arbitrator and Accordingly,
court. the District Court summary judgment it granted
erred when
in favor of CPI. reasons, foregoing the decision
For and the
of the District Court is reversed remanded with instructions enter
case is compelling arbitration.
judgment
LITTLE ROCK SCHOOL
DISTRICT, Appellee,
v. ARMSTRONG; Karlos Arm-
Alexa
strong; Khayyam Davis; Alvin Hud- Joshua;
son, Hudson, Lorene Tatia Stacy Joshua; Wayne Joshua;
Leslie
Joshua; Facen; Miles; Derrick Sarah Miles; Miles; NAACP; John M.
Janice
958 Pressman,
Robert argued, Lexington, (John Walker, rebuttal, MA W. Little Rock, AR), appellant. for Heller, Christopher argued, J. Little Rock, AR, for appellee. WOLLMAN, HEANEY,
Before
ARNOLD,
RICHARD S.
Judges.
Circuit
ARNOLD,
RICHARD S.
Circuit Judge.
This case
appeals,
consolidates two
both
arising from the Little Rock School Dis-
request
unitary
First,
trict’s
for
status.
the Joshua
appeal
Intervenors1
from the
District Court’s2 denial of their Motion for
Recusal of
Judge
District
Vacating
Orders, Rulings,
Judgments.
We re-
view a district court’s denial of recusal for
Hale,
abuse of discretion. See In re
1176,
(8th Cir.1992);
F.2d
United
Walker,
(8th
513,
States v.
920 F.2d
Cir.1990). We conclude that Judge Wil-
Wilson, Jr.,
group
parents
This
of school children and
2. The Honorable William R.
Unit-
are,
matter,
practical
plaintiffs
as a
in the
Judge
ed States District
for the Eastern Dis-
present juncture.
case at its
The Little Rock
trict of Arkansas.
District,
actually
School
initiated the
case in
effectively
the defendant for
purposes
appeal.
of this
Henry
events relevant to the
representation
Judge
disquali-
issue
son’s
case,
stage
Judge
fication
Wilson.
at a much earlier
Woods
issues,
far different
did not involve
and on
In
and the
Joshua Interve-
controversy”
pur-
the same “matter
*3
disqualify
nors
sought
Judge Henry
thus,
455(b)(2);
§
we
poses of 28 U.S.C.
Woods,3
presiding
who was then
over the
Interve-
affirm the denial of
Joshua
parties
case.
grounds
asserted as
for
nors’ Motion for Recusal.
disqualification
during
that
Judge Woods’s
appeal
also
The Joshua Intervenors
private
practice,
partners
law
one of his
judgment grant-
from the District Court’s
represented parties
participated
had
who
(LRSD)
the Little Rock School District
ing
case,
as amici curiae in a related
and that
unitary status. The Joshua Inter-
partial
Judge
impartiality was
Woods’s
called into
(1) that the District Court
venors assert:
question by his
at a meeting
comments
considering
requiring
Wilson,
erred
not
in
Judge
pri-
with students.
then
reports from the Office of De-
additional
practice, represented Judge
vate
Woods
(2)
(ODM);
Monitoring
segregation
purpose
for the limited
of the mandamus
finding of sub-
the District Court’s
Judge
proceedings, defending
Woods’s de-
the Revised De-
compliance
stantial
not
cision
to recuse himself.4
Plan
erro-
segregation and Education
In the
proceeding, begun by
current
neous. We hold that the District Court
motion that
it
LRSD’s
be released from
by failing
require
not err
new writ-
did
supervision,
court
the Joshua Intervenors
ODM,
reports
ten
from the
and that the
sought
Judge
the recusal of
Wilson
findings of fact are not
District Court’s
455(b)(2),
§
requires
28 U.S.C.
a
thus,
erroneous;
affirm
clearly
we
in
judge
disqualify
pri-
himself “where
grant
partial unitary
status.
in
practice
lawyer
vate
he served as
the facts relevant to each issue
Because
controversy.”
matter in
After Judge Wil-
different,
them
appeal
on
are
we address
13,
on September
son entered an order
I,
In Part
separately.
we address the
2002,
partial unitary
granting LRSD
sta-
II,
disqualification.
In Part
we
issue
tus, the Intervenors filed a Motion for a
should
address whether the District Court
Hearing Regarding the
of 28
Relevance
required
reports
new written
from
Proceedings.
§
U.S.C.
455 to the Present
III,
Finally, in Part
we address
the ODM.
Judge Wilson denied this motion on Octo-
finding
erred in
whether
29,
ber
2002. Little Rock Sch. Dist. v.
substantially complied
with the
1,
County Special
Pulaski
Sch. Dist. No.
respects.
Revised Plan in most
(E.D.Ark.2002).
I. disqualifica- Intervenors moved for Joshua Judge de- litigation began Judge This in 1982 and tion of Wilson. Wilson because, among nied this motion other rea- has been and out of this Court and sons, served, view, a complex times—it is he had never his District Court several controversy.” lawyer in the “matter say briefly highlight the least. We Judge sought Woods was not 3. The Little Rock School District a This Court found that disqualified. asking Court to Little Rock Sch. Dist. v. Pulaski writ of mandamus dis- 1, Woods, County Judge Special Dist. No. 839 F.2d qualify and the Joshua Interve- Sch. (8th Cir.1988); by Judge v. appealed judgment Little Rock Sch. Dist. nors entered 1, Woods, asserting, among things, County Special Sch. other Pulaski Dist. No. Cir.1987). (8th judge disqualified. should be F.2d 112 “case,” County Dist. v. Pulaski rely Little Rock Sch. word and so we do not on this Special No. No. Instead, Sch. Dist. 4:82CV00866 technical distinction. we look to 1, (E.D.Ark. 2002). The Joshua In- Dec. argued substance issues appeal. tervenors decided in the two proceedings. Judge must determine whether We Wil- In Little Rock Sch. Dist. v. Pulaski representation Judge son’s Woods the County Special Sch. Dist. No. 839 F.2d mandamus in 1987 involved the proceeding (8th Cir.1988), discussed, we but did controversy” pres- same as the “matter decide, whether a matter in controver questions purposes ent before us of 28 sy beyond single could extend case. 455(b)(2). U.S.C. Because the manda- controversy Even if a matter in could be *4 proceeding not touch upon mus did case, more than a single extensive we con case, merits of the conclude that it we was cluded that the facts before us did not part not a of the “matter in same contro- support such a conclusion because the versy.” involved, extent, large cases “to a different The Intervenors contend that Joshua issues and different at remedies.” Id. Judge participation part Wilson’s was 1302. We think this reasoning is useful in controversy the same matter in because it determining whether matter in contro part single language was of a case. The versy may be less extensive than a case. by Congress, chosen in “matter controver- Judge representation Wilson’s of Judge sy,” by is not defined the statute. Howev- solely Woods was restricted to the issue of er, easily Congress could have substituted go recusal and did not to the merits of the the word “case” for the words “matter in Judge case. Wilson was involved in the controversy,” but did not do so. This de- solely case for the mandamus proceedings liberate choice Congress demonstrates and, in the representation, course of his an intent that the in words “matter contro- never addressed the merits of the case or versy” something mean other than what expressed .any opinion about them. The commonly fact, we refer to as a “case.” In Judge issues before Wilson in the present Congress used the “proceeding,” words wholly matter are prior unrelated to his controversy,” “subject “case in and matter representation Judge Woods. in controversy” in various other subsec- Although the case law is slim in this 455(b) tions of to describe situations area, we support position find for our in In where a judge disqualify must himself. Co., (8th Apex re Thus, Oil F.2d Cir. we must assume Congress as- 1992). Oil, In Apex particular Judge cribed a Loken found meaning to his the words unnecessary “matter in recusal controversy,” where he try and we must and his for to discern that meaning. mer firm law were previously involved plaintiffs’ with claim damages from an We note'that Judge represented Wilson where, spill later, oil and his law firm filed Judgé at Woods proceed- mandamus claims on behalf of plaintiffs Apex in Oil’s ings, which given were a separate docket bankruptcy proceedings. Id. at 304-05. number from the rest of the case this question plaintiffs’ whether the circumstance, Court. This though rele- damages claim for constituted the same vant, enough is not in itself to enable tous in controversy matter as the later claims disqualification conclude that the proceed- bankruptcy when both ing was not the resulted from the same “matter in controver- sy” spill. same oil present appeal. as the Id. at 303. Although As we have ac indicated, phrase knowledging bankruptcy “matter proceedings controver- sy” must something mean other than the are atypical because are conducted Otherwise, Lo- the matter. proceeding, Judge an umbrella assessment the cases were not ken concluded incomplete Court would be “sufficiently related” so as to constitute keeping expectations with the controversy. matter Id. the same Eighth Appeals Circuit Court of it when Applying analysis to our situa- required the establishment of the ODM tion, conclude that there is not a suffi- we to assist the in determining relationship pro- the recusal cient between effectuating desegregation compliance. Judge ceedings respect Woods opposition This was filed while the case the issues now before us on the merits to (who Judge Wright was still before Chief them the same “matter in controver- make Judge had taken the ease after Woods had any impartial we think that sy.” Nor do it). removed himself from She then con- reasonably think that observer could days ducted five and one-half of evidentia- should Judge impartiality Wilson’s be ry hearings, ending on November question. only Not was his called into January Judge Wright On Chief whol- prior representation Judge Woods case, from withdrew and it was reas- distinct; Judge ly the issues before signed Judge He held Wilson. three cur- proceeding the current involved the *5 days evidentiary additional of hearings on parties’ agreement rent version of the 22, 23, 24, July and case, agreement an underlying settle the Woods, Judge that was never before and The Joshua major Intervenors’ second long that was not even existence until on argument appeal is that voluntarily relinquished after he the case. in making findings Court erred and enter ing judgment directing without ODM to II. additional prepare monitoring reports on noted, As we have this appeal compliance LRSD’s with the Revised Plan. desegregation from an arises interdistrict point The Joshua Intervenors out that the part case filed 1982. As of place ODM was created in the first at the case, parties agreed to a settle direction of this Court. See Little Rock However, ment as time plan County Special Sch. Dist. v. Pulaski Sch. plan proved of that un passed, portions 1, (8th 1371, 921 F.2d Dist. No. 1388 Cir. workable, agreed parties and the to the 1990). Desegregation Revised and Education it The District Court had before some plan Plan. This the Dis approved a relevant materials from the ODM: re- trict Court this Court. port preparations imple- on LRSD’s 15, 2001, March On LRSD asked the Au- mentation of the Revised filed unitary District Court to declare it report disciplinary of gust 25, July 2001, § 11 of the Revised Plan. On sanctions the Little Rock School Dis- an opposition the Joshua Intervenors filed trict, 14, filed on June 2000. As the first request. opposition, App. to this The of report, the Court observed that it “indicat- 185-86, following ar- Appellants made the that, overall, doing a ed LRSD was satis- many gument, among others: factory job implementing of the Revised further The Joshua Intervenors believe Plan.” Little Rock Sch. Dist. v. Pulaski have it a Court must before County Special Sch. Dist. No. response plan written to the district’s or (E.D.Ark.2002). F.Supp.2d analysis regarding other written District Court did not view the second plan Desegre- from the Court’s Office of (ODM) having much value. The Joshua report as gation Monitoring before the regarding argue can a final that the District Court opinion issue Intervenors Court, an prepare had the ODM ad- direction of this at the time of our should have report reports making before ditional initial of approval agree- the settlement They point out that “ODM any findings. ment, but the ODM was to be under the expertise, prepar- gained had considerable of supervision the District Court and to act reports.” Appel- Brief for ing at least as an arm of that Court in ensuring that lants 39. agreement' the settlement was followed. job It was and remains the of the District argues that response,
In Court, discretion, in its determine how properly raised the Dis- point was Certainly it A rely is true that the the ODM should be used. choice to trict Court. entered written order ex- on existing prepared by Court never materials request that addi- pressly disposing ODM, preparation and to eschew the monitoring reports prepared. be tional reports, certainly additional is not an to Judge Before the case was transferred abuse discretion. Two further points however, Wilson, Judge Wright ef- Chief First, are important. the Joshua Interve- fectively request, Intervenors’ denied the have, not, nors could but did call someone saying: Second, testify. from the ODM no offer free, Walker, course, you are Mr.
And
proof
was made. We do not know what
Desegregation
to call the Office of
Moni- ODM’s
would
if
position
have been
it had
witnesses,
well, mean,
toring as
I
situation,
been asked.
In this
it
simply
people
those
as witnesses to the extent
impossible
say
that the decision not to
you
knowledge
think
on the
request
production
papers
of additional
furthermore,
matters at issue. And
had
effect on the outcome of this case.
I talked with Ms. Marshall
head of
[the
*6
this,
about
I
mind Ms. Mar-
ODM]
don’t
III.
you,
you
shall telling
sharing with
the
“supersede^]
The Revised Plan
and ex-
has,
if
information that she
but
she does
tinguish[es]
prior agreements
all
and or-
everyone
that I want her to share it with
case,
in
ders”
the
with
exceptions.
limited
else too.
App. of Appellants
previ-
87. Unlike the
Tr.,
29, 2001,
of June
27-28. The Joshua
agreement,
ous settlement
the Revised
Intervenors,
response
to this invitation
Plan
specific procedure by
contains a
otherwise,
anybody
or
did not call
from the
which
unitary
LRSD can attain
status.
ODM as a witness.
Section 11 of the
provides:
Revised Plan
noted,
request
As we have
that addi-
the
At the conclusion of the 2000-01 school
monitoring
required
tional
reports be
year, the district court shall enter an
motion,
subject
not the
separate
of a
but
releasing
order
super-
LRSD from court
mentioned,
rather a
in pass-
matter
almost
finding
vision and
the
unitary
LRSD
ing, in a
In-
pleading
filed
the Joshua
all
regard
aspects
oper-
with
of school
tervenors. App. Appellants
of
185-86. As
provided
ations
that LRSD has substan-
tell,
far as we can
request
the
was never
tially complied with
obligations
its
set
record,
writing
renewed on
the
either
forth
this Revised Plan. In anticipa-
Court,
in open
during
days of
the
eviden-
release,
tion of
LRSD
issue a
shall
re-
tiary
Wilson,
hearings
by Judge
conducted
port
indicating
on March
2001
or in
any other manner. We nevertheless
compliance
state of LRSD’s
assume for
present purposes
point
that the
us,
properly
Any party challenging
Revised Plan.
before
and we hold that it is
ODM,
without
compliance
merit. The
as the Joshua
LRSD’s
bears the burden of
out,
point
Intervenors
was created at the
If
proof.
party challenges
no
LRSD’s
ion,
erroneous,
clearly
order
which means that
compliance, the above-described
pro-
further
entered without
shall be
must
and firm
we
“definite
convic
ceedings.
tion” that the District Court was mistaken.
If
permissible
Ibid.
“there are two
views of
Appellants
of
110.
App.
evidence,
the factfinder’s choice’ be
§by
11 of the
Although
required
not
clearly
them cannot be
tween
erroneous.”
Plan,
final
year
one
before the
Revised
Id. at
(quoting
City
Anderson v.
due,
by § 11 was
report required
of
564, 574,
City,
Bessemer
470 U.S.
105 S.Ct.
report to demonstrate its
filed an interim
(1985)).
1504,
academic § 2.7. Id. at 1081-82. LRSD has not appeal The Joshua Intervenors ruling the District Court’s cross-appealed judgment grant from the District Court’s *7 2.7.1, §on and it is not before us. This unitary § status under 2.1 of ing LRSD in the pending issue remains District Plan, provides: the Revised Court. faith good LRSD shall exercise its argue the Intervenors appeal, On Joshua comply best efforts to with the Constitu- granting that the District Court erred tion, remedy past the effects of dis- unitary Specifical- partial status to LRSD. by against crimination LRSD African- ly, challenge the the Joshua Intervenors students, that no American ensure finding District Court’s of substantial com- against on the person is discriminated (1) following with the sections: pliance race, ethnicity in the basis of color (2) 2.1, Faith; 2.6-42.5.4, § §§ Good Stu- operation provide of the LRSD and to (3) 2.6, § Discipline; dent Extracurricular equal opportunity an for all educational (4) Activities; 2.6-2.6.2, §§ and Advanced attending students LRSD schools. . Placement Classes. places App. Appellants of 88. This section findings the District Court’s
We review duty on LRSD to exercise independent an fact for clear error. Nash Finch of See “good to act in faith” its “best efforts” and L.L.C., Hastings, Co. v. 341 F.3d Rubloff Cir.2003). remedy effects of (8th Thus, attempting we must are, opin- in our discrimination. findings affirm unless the argue Intervenors vised Plan and that had poten- The Joshua LRSD in good not act faith. As evi- being LRSD did tial for a model school district for dence, they allege High that Central the nation. Id. 647. Dr. Roberts criti- functionally segregated, al- is still School having cized a “compliance men- though building itself has been inte- tality” because some individuals were in- Appellants Brief for 44-46. grated. See only in meeting requirements terested Specifically, argue the Joshua Intervenors Plan. Revised Id. at 630-31. How- advanced-placement program seg- that the ever, Court, explained by classrooms, regates students into different compliance exactly was the issue at hand. equivalent of which are the functional dif- scrutiny LRSD was under constant Moreover, they as- ferent schools. Ibid. very had be careful it met its assigned sert that the teachers are to ad- Dist., obligations. Little Rock Sch. vanced-placement racially in a courses F.Supp.2d at 1045. segregated teach- manner —white teachers Plan, § Under 8.2 of the Revised de Afri- ing advanced-placement classes and procedure tailed for addressing compliance teaching regular can-American teachers whereby issues was established the parties classes. Ibid. The Joshua Intervenors attempt compliance would to solve suggest segregation seeps also out- issues submitting side of the classroom and into extracurric- before them to the District ular activities. Ibid. Court for resolution. paid The Board Joshua Intervenors to monitor LRSD’s § faith obligation good of under 2.1 compliance During with the Revised Plan. from, separate the Revised Plan is the term of the Revised the Joshua of, independent other affirmative obli- only compliance Intervenors raised five is gations pursuant undertaken sues, which were all resolved without re Thus, § 2 of it possi- the Revised Plan. sorting to the District App. Court. faith, in good ble for LRSD to have acted Appellee 415. None of the issues 2.1, raised § meeting obligation its even opposition to the final report previous though it did not meet other affirmative ly raised obligations Joshua Intervenors. The imposed by the Revised Plan. District Court purpose found that the adopted, After the Revised Plan was dispute mechanism under 8.2 was to Little Rock School Board enacted fifteen any surprises avoid when LRSD filed the policies obligation different related to its final report, and that reasonably good faith took that all steps ensure relied on the Joshua Intervenors to raise administrators and teachers were aware of any problems in timely fashion. Little these new policies. LRSD also hired Dr. *8 Dist., Rock F.Supp.2d Sch. at 1043. Roberts, 24, 2002, July Terrence Tr. at of The District Court also found that the 615-16, Ross, July and Dr. Tr. of Steven interim report placed the Joshua Interve- desegregation experts. at as nors on problems, notice of all the but Dr. Roberts that he had testified been respond. did not Although § Ibid. 11 does actively involved in reviewing policies and require any objections that previ be procedures. July 24, Tr. of 619- ously 8.2, § raised under 20. He also testified that he had devel- Court found that Intervenors’ oped training failure to programs for teachers and raise these other staff issues was a factor to members. Ibid. Dr. Roberts consider deciding testified that in substantially he told the Board that whether LRSD LRSD had complied directed much and effort with energy to- the Revised Plan. Id. at meeting ward all in the criteria the Re- 1043-44. above, purpose ensuring no of that there is we find no racial
For the reasons stated finding in the District Court’s regard clear error discrimination with to student disci- § 2.1 compliance with of of substantial pline be instituted. This does not mean Plan. Revised programs perfectly that the must be effica- addition, object cious. In is to eradi-
B. discrimination, cate which is not necessari- appeal Intervenors also The Joshua ly thing disparity. the same Racial judgment grant the District Court’s from disparity may exist without discrimination. §§ 2.5- ing unitary status under LRSD Discrimination, course, can cause dis- 2.5.4, Al discipline. to student relating parity, only possible but it is not the cause. impose specific §§ obli though 2.5.1-2.5.4 in Disparity discipline nation-wide regard discipline, the Josh gations problem. The District Court cited some particular ua assert Intervenors thing suspension called “total index.” The obligation not meet its LRSD did suspension total index demonstrates dis 2.5, provides: which parity discipline and is calculated implement programs, poli- LRSD shall dividing percentage of African-Ameri procedures designed to en- cies and/or expelled suspended by can students or sure that there is no racial discrimina- percentage of African-American students discipline. regard tion with student population, comparing this num App. Appellants 90. This section re- ber with that for white students. The quires implement pro- LRSD to create and suspen District found that LRSD’s designed to eliminate grams policies sion index between 1.25—1.31 for the discriminatory practices from dis- student Dist., years 1997-2001. Little Rock Sch. however, cipline. require, It does not words, F.Supp.2d at 1054. In other absolutely racial fact eliminate example, take 1997 as an African-Ameri disparity discipline. from student likely, can students were 1.25 times as so argue Intervenors that the Joshua speak, disciplined suspended to be found that improperly District Court than national white students. The index substantially complied with LRSD had 2.24, for and the index 1998 was Arkansas § 2.5 because the Court misconstrued the specifically was 2.16. The District Court meaning of the words “to ensure.” Brief found that the Joshua Intervenors did not Appellants Interpretation dispro proving meet their burden of law, question Revised Plan is a which African- portionate discipline imposed on novo, we review de and we hold that the was the American students result dis construing did not err in District Court Dist., crimination. Little Rock Sch. by § obligation imposed 2.5. F.Supp.2d finding at 1057. This is not argue that “to The Joshua Intervenors clearly erroneous. that racial ensure” means to make sure policies imple- LRSD enacted several If does not occur. Ibid. “to discrimination regarding student dis- obligations ment its only operative phrase ensure” were the Compliance cipline and created provision, argument might be well im- planned outlined how require §But 2.5 does not taken. *9 Plan plement the Revised and who bore anything. merely requires It to ensure responsibility implementation. for such programs, policies, “implement that LRSD Compliance the Junious Under procedures designed to ensure and/or ours.) monitoring stu- responsible Babbs was ....” The thrust of the (Emphasis ombudsman, An programs discipline. with the dent James provision is certain appointed pursuant was Washington, report suggested to that the that factors out- 2.5.3 to ensure students were treat- side of the schools might affect which stu- fairly throughout discipline process. ed the dents receive discipline, such as home en- charged The ombudsman was with shep- vironment, values, family and whether the herding through students discipline the home a single-parent at home. Id. process, including making students aware The report did not contain a specific anal- rules, acting as an advocate for ysis of the facts of suspension each or ex- students disciplinary pro- involved pulsion help determine whether dis- cess, and investigating parental and stu- crimination occurred. at Id. 1052-53. complaints dent of discrimination. However, report did conclude that the The interim and final reports by issued disparity racial meant that LRSD “has LRSD focused on the decrease in overall certainly not eliminated nor even abated suspensions expulsions, in part due ” racial in suspensions discrimination .... programs LRSD, developed by such as Id. at (quoting Report on Disciplin- behavior modification programs and alter- 2000). ary LRSD, Sanctions June learning native App. Appellee centers. rejected The District Court this conclusion 85-87, Although 273-74. the reduction in speculative because it was based on raw suspensions for African-American stu- statistics. Ibid. dents was not so large as that of white students, the District Court found that the Watson, Dr. Linda Super the Assistant proportion of suspensions received Afri- intendent for Student Hearings, was re can-American students remained sponsible for monitoring compliance with Dist., same. Little Rock Sch. 237 the Student Handbook. She reviewed ev F.Supp.2d at 1051. Neither the interim ery long-term suspension expulsion report report nor the final focused on the appeals all from suspensions. short-term fact that racial disparity existed among the Tr. of Nov. 36-37. If proce students who suspensions received or ex- dures of the Student Handbook were not pulsions, and the District Court found that followed, Dr. Watson pun overturned the LRSD could have sorted the data such a ishment and removed it from the records. way as give a more meaningful analysis. Ibid. Although Dr. Watson acknowledged However, Id. at 1051-52. the District that African-American students were Court found that the Joshua Intervenors more frequently suspended than white stu had access to the raw data and never dents, she believed this was due to fact raised the issue. Id. at spe- 1052. More they more frequently engaged in con cifically, the District Court found that the prohibited duct by the Student Handbook. reports did not mislead the Joshua Inter- Id. at 83-84. She also testified venors. that she Ibid. believed this was due primarily to socio The produced ODM a Report on Disci- (Some economic factors. of these factors plinary LRSD, Sanctions in which showed may be caused or related to racial that African-American students received discrimination, but are not the fault of disproportionate suspensions number of LRSD.) present administration of expulsions. However, District specifically found that the Court specifically found that report testimony of all was not the administrators in intended to address the effective- ness of volved in any programs disciplinary process that were instituted Dist., address fairness in discipline. Id. credible. Little Rock Sch. 1052-53. The District Court F.Supp.2d also noted at 1050. *10 only It that reasons, requires find no clear er- insurer. the District we
For these finding of sub- “implement programs, policies pro- in the District Court’s ror and/or § of the Re- compliance with 2.5 designed promote participation stantial cedures to Plan. ensure,” vised (Emphasis and to et cetera. ours.) C. final a in report noted marked appeal also The Joshua Intervenors par crease in African-American students’ judgment grant from the District Court’s ticipation extracurricular activities fol §§ unitary under 2.6 and ing LRSD status lowing policies. the enactment of the new 2.6.3, relating to extracurricular activities. App. Appellee report 276-77. The final imposes specific § 2.6.3 a obli Although also that attempted demonstrated LRSD regard transportation gation with participation by to eliminate barriers to activities, the Joshua Inter extracurricular having transport buses students to and that did not meet its venors assert LRSD from extracurricular activities. Id. at 278. 2.6, § provides: obligation Although the record not does establish implement programs, poli shall advantage which students took of the extra designed pro procedures cies and/or buses, final report stated that “no ex to ensure that participation mote and activity tracurricular transportation re participation by there are no barriers to quest by eligible made an student has been African-Americans extracur qualified denied.” Ibid. As noted the District .... ricular activities Court, the Joshua Intervenors bore the Appellants 90-91. App. issue, proof burden of on this did argue Intervenors that ra- The Joshua provide single testify a witness to cial discrimination occurred extracurric- African-American students were unable to activities, by the fact that ular evidenced participate transporta because of a lack of D many activities did' not extracurricular ist., tion. Little Rock Sch. African- proportionate share of F.Supp.2d at 1059. Appel- participants. American Brief for also assert that The Joshua Intervenors participants, activities’ lants 46. Certain the costs of certain activities create bar bowl, tennis, swimming, quiz mock such as Although there are participation. rier to trial, cheerleading, predominant- were activities, associated with certain Dr. costs also ly The Joshua Intervenors white. Lacey, Superintendent Marian Assistant partic- that there were barriers assert Schools, Secondary that each testified ipation, including participation costs of discretionary had a fund which school transportation. lack of pay the help could be students used that ra argue Intervenors The Joshua Tr. of costs of extracurricular activities. activities disparities cial extracurricular July The District Court 775-76. However, are the result of discrimination. Intervenors also found that the Joshua Court, nothing in as noted testimony no student presented required the Revised Plan 2.6 of participate opportunity denied an activi impose quotas on extracurricular Dist., of costs. Little Rock Sch. because Dist., F.Supp.2d ties. Little Rock Sch. F.Supp.2d at 1059-60. promote undertook to at 1058. LRSD Intervenors asserted The Joshua of African-American students participation schools, Afri- primarily which were certain participation. and to eliminate barriers to can-American, have the same ex- 2.5, did not §to respect we noted above with As schools, as other not make an tracurricular activities provision does *11 duty violated pro- specific provisions and LRSD’s to Instead, were violated. However, mote participation. 2.6, focus on imposes a more Court found that each school determined general duty: which extracurricular activities to offer on LRSD shall implement programs, poli- interest, if enough the basis of student and procedures cies designed pro- and/or existed, each school interest offered a sti- participation mote and to ensure there pend sponsors of those activities. Id. at are no participation by barriers to quali- The District concluded that fied African-Americans in ... advanced missing activities certain were certain courses, placement honors and enriched schools not because of discrimination but courses gifted pro- and talented instead because of lack student interest. gram. Ibid. App. Appellants phraseolo- 90-91. The presented The Joshua Intervenors sev- gy provision of this is similar to others testimony eral students’ to support their discussed above. assertion African-American students encouraged were not to participate or were The Joshua Intervenors assert prevented from participating extracur- District Court erred in finding no barriers ricular activities. The District Court did to participation in advanced-placement not find this testimony impressive. Id. at courses. The low number of African- Questions of credibility and infer- American assigned teachers to advanced- ences to be drawn gener- from facts must placement courses, they say, is a barrier to ally be left to the trial court. participation. Brief for Appellants 43-44. The Joshua Intervenors bore burden The Joshua rely Intervenors primarily on of proving that implement- LRSD was not testimony Faucette, Dr. Michael an ing programs, policies, procedures de- English teacher at Central High School. signed promote participation and ensure Dr. Faucette testified that although there there were no to participation by barriers eight were African-American teachers and qualified African-Americans extracur- eight white High’s teachers Central En- ricular activities. We hold that the Dis- glish Department, African-American trict Court did not err in determining that taught only teachers a few of the ad- the Joshua Intervenors failed to meet this vanced-placement sections. Tr. of July burden. Faucette, 176-80. Dr. an African- teacher, American did not teach any of the D. advanced-placement sections. Id. at 177.
The Joshua Intervenors also appeal The Little Rock School District Board from the District Court’s order granting created a regulation setting forth criteria unitary 2.6-2.6.2, §§ status under to help teachers identify African-American relating advanced-placement classes and students for participation in advanced- programs. §§ honors 2.6.1 While placement Although courses. this was impose 2.6.2 one specific on duties LRSD to factor used in provide identifying par- students for training programs for teachers to ticipation in identify courses, advanced-placement and encourage qualified African- American enrollment participate open was still students ad student vanced-placement who proper showed the programs to assist level of motivation African-American in being students and commitment. App. suc of Appellee 279. in advanced-placement cessful programs, Teachers were required then to monitor the Intervenors do not complain that performance these and behavior to ensure that *12 District found Dr. Faucette’s would The Court in those courses placed students testimony Ibid. remain there. unreliable. increase en methods to LRSD studied point The Joshua Intervenors also courses advanced-placement
rollment disparity High in the Hall racial School pre-advanced-place that and determined University a program, program Studies necessary prepare courses were ment conjunction developed with the Univer- imple LRSD and earlier. students better sity pro- of Arkansas at Little Rock that courses pre-advanced-placement mented opportunity vided an for students to earn seventh-grade students. sixth for college credit for classes taken at Hall highly success programs have been These High requirements School. Admission ful, that as a District found and the Court Ar- developed University of were has added programs, LRSD result of these 24, 2002, July kansas. Tr. of 727-28. In to its African-American students over 600 college order to receive credit for the juniors for advanced-placement courses courses, Dist., required pay students were Little Rock Sch. and seniors. approximately per tuition of course. at 1063. F.Supp.2d $150 22, 2002, July Tr. of 114. The Joshua implemented has also pay- Intervenors assert that the tuition de Program, program a summer SMART participation created a barrier to for ments algebra pre to students signed to teach Ap- African-American students. Brief for grade. algebra eighth in the pare them pellants 42^13. District Court Appellee 112. The App. of the Revised during that the term
found during The District Court found that attend at least 95% of students year, 58% of the students 1999-2000 school Program were African- ing the SMART High in Hall School’s Univer participating Dist., Rock Sch. American. Little sity Program were African-Ameri Studies at 1063. Evaluations F.Supp.2d can, while African-American students com it Program determined SMART that High at prised 71% of all students Hall 24, 2002, July 678. Tr. of success. Dist., 237 School. Little Rock Sch. a “Teachers of LRSD also instituted 2000-2001, F.Supp.2d During at 1066. number, to increase the program Color” University in the only 35% of the students advanced-placement African-American African-American, Program were Studies principal at 671. The teachers. Id. African-American students com while high school deter each middle school High of all students at Hall prised 72% assigned would be to teach mined who However, the found Ibid. School. However, principals were each class. presented no that the Joshua Intervenors collective-bargaining constrained was denied ad required consideration evidence student agreement, which seniority. Tr. experience of a teacher’s University Program to the Studies mission 22, 2002, advanced-place An July inability pay. Ibid. Testimo because of qualified also needed to be ment teacher that the school solicited a ny also indicates Dr. Faucette Although the state. through the cost for at least one donation to cover composition racial testified about the wished to student who African-American advanced-placement teachers Central Tr. of pay. but was participate unable he English Department, did High School’s July advanced-placement know about other reasons, we hold that For these High Little sections at Central School. finding Dist., did not err at 1065. District Court F.Supp.2d Rock Sch. substantially complied with ing its obli- management classroom and effective gations § 2.6 of the Revised Plan. discipline; and the pro- followed
:¡; [*] [*] Hi [*] gressive discipline approach by imposing lesser sanctions before suspending stu- affirmed. judgment goes It with- dents. saying, say anyway, out but we it *13 fully subject remains to the Consti- It is also true that the LRSD has re- laws, applicable
tution and all other duced the total number of disciplinary obligations that these are enforceable sanctions of during students the time of legal action. appropriate 5,312 the Revised Plan from total sanctions 1998, 5,080 in to total sanctions in 2001.5 HEANEY, Judge, Circuit concurring. During period, however, that same the I in every aspect majori- concur of the number of black receiving students disci- ty’s except insofar as it opinion holds that plinary actually sanctions increased. Dur- the implemented “programs, LRSD has ing year, the 1998-99 school there were policies procedures designed to en- and/or 4,470 disciplinary sanctions of black stu- sure that racial there is no discrimination compared dents to 842 disciplinary sanc- regard with to discipline,” student as re- tions of way, white students. Put another quired by section 2.5 of the Revised Plan. in the year Plan, first of the Revised 65% view, my In the LRSD has failed to meet of the population student in the LRSD was obligation. black, while 84% of the disciplinary sanc- It is true that implement- the LRSD has tions were of black By students. the ed programs several with regard to stu- year status, the sought unitary the dent discipline: provided the LRSD every disparity greater. was even In the 2000- student, teacher, parent, and administrator year, 4,534 school there were disciplin- copy Handbook; with a of the Student the ary sanctions of black students compared students, teachers, LRSD trained and ad- to 546 disciplinary sanctions of white stu- on provisions ministrators the Hand- words, dents. In other black con- students book; position the LRSD created the sisted of 68% of the student population, investigate Ombudsman student com- but accounted 89% of the disciplinary plaints of race-based mistreatment in stu- Therefore, sanctions. from dent Watson, Dr. discipline; Linda the disciplinary sanctions of black in- students Superintendent Assistant who respon- was creased, from 84% 89%. It is undisput- sible for implementing 2.5 section ed that programs the instituted Revised every long-term reviewed LRSD to address disciplinary issues have suspension expulsion, any short- had no positive impact on the dispar- racial term suspensions that were appealed; Dr. ity of discipline student in the district. Watson prepared and quarterly reviewed you If compare discipline statistics Discipline Management Reports from each in the high individual schools for school, the same used reports identify these prob- period they very track in lems, ways similar and met with the schools’ administra- almost all of solutions; tors the schools experiencing discuss an LRSD estab- lished increase in learning disparity. alternative It environments to noting, worth allow however, problems students with behavioral that School, Parkview High school; remain the LRSD offered train- most integrated high district, school in the 5. All 1998 statistics are from the LRSD's are from the LRSD’s 2000-2001 Dis- Annual 1998-1999 Disciplinary Management Annual (Ct.Ex. Management CX681). ciplinary Report (Ct.Ex. Report CX679) and the 2001 statistics impact discipline. disparate continued disparity student racial the lowest has (Nov. 19, 2001, Tr. at 1998-99, Unitary Hr’g Status In in the district. discipline 25-163,). that Dr. also testified Watson was 51% population student Parkview’s being percentage of black students disciplinary the percentage and the black decrease, disparate suspended In did not 49%. of black students sanctions on discipline still exist based patterns of popula- 2000-01, black student Parkview’s race, plans are no to reduce that there 51%, percentage still but tion was discipline impact of student disparate of black students sanctions disciplinary district, is not even however, and that the 66%, Park- Even at to 66%. rose on race. looking discipline student based disparity stu- lowest still had the view (Id.) year. in the district discipline dent court, majority, and the district Plan does not Revised agree
I *14 that racial in the seem to take solace fact absolutely eliminate to the require a national discipline in is disparity student discipline. student disparity from racial court, According to the district court, problem. howev- district majority and the The 1998, in suspension “total in national that 2.5 the fact section er, rely heavily on the “total 2.24 and the Arkansas dex” pro- was- implement to the LRSD requires 2.16, the was whereas suspension index” that there is “designed to ensure” grams suspension remained LRSD’s “total index” in disci- student racial discrimination no 1997-2000. Little at 1.26 from the constant that because implication The is pline. County Special Rock Sch. Dist. v. Pulaski programs implemented 237 F.Supp.2d Dist. No. actual Sch. discipline, the effect student would (E.D.Ark.2002). the dis majority The and not matter. does programs of those impact the the fact. trict court consider for the LRSD enough It disagree. I not is lower than that index is to LRSD’s implemented it the programs to list the significant, and nation the state discipline, in student disparity the address change index not that the LRSD’s did an fact programs those was the result of when insig Plan of the Revised period in over the disparity in the racial student increase Plan Revised disagree. nificant. I The of implementation The mere discipline. racial dis the nothing said about many or how no how LRSD’s matter programs, in discipline comparison in student virtually parity no that have sounding, impressive Revised nation. The the state or the in to disparity student on the racial impact however, did, require the LRSD Plan to meet the dis- enough discipline not designed to ensure implement programs Plan. under the Revised obligations trict’s in disci student disparity the racial in disparity impact on the This lack of This, district would decrease. pline the you really surprise no when discipline is do. they faded to Dr. Dr. Watson. testimony of review the n court also majority and the district in- that: she was never Watson testified not meet its burden did assert that Joshua reduc- needed be a that there structed in stu- disparity the racial proving suspensions impact in the tion racial discrimi- discipline was the result dent district; moni- prepared never she not Joshua’s burden. This was in nation. disparities regard toring report with Revised 11 of the to section According any reports prepare discipline; she did proving Plan, bears burden Joshua or certain teachers which track whether with its comply failed that the LRSD disciplin- pattern administrators plan. Josh- set forth race; obligations as she on nor did ary actions based that the showing by ua met burden this to address any programs recommend programs the implemented to ad- er blacks disciplined are frequently more dress racial disparity in discipline for legitimate were reasons or because are I ineffective. As read the judged by Revised it different standards than white obligation students, the LRSD’s by determine least some I teachers. whether the continued disparity in would disci- remand this case to the district pline was the result of racial court on issue, the disciplinary discrimination along with merely socioeconomic factors issue of sug- student achievement retained gested court, Dr. Watson. the district again, Here to require the district comply LRSD failed to meet its obligation original our mandate. merely rested on the fact that it imple- that, programs. Programs
mented in the
end, had no effect on the racial disparity discipline.
student
It is true that Joshua could have done Richard FREDRICKSON, more to Appellant, raise concerns about the failure of earlier, programs LRSD’s but v. does not remove all responsibility from the BARNHART, Anne B. Jo Commis- LRSD. The statistics compiled reports sioner of Security Social Ad- *15 filed by the LRSD lack valuable I data. ministration, Appellee. no found useful statistics on recidi- No. 03-2428. vism among students to determine how students, many race, and of what are re- United States Court of Appeals, ceiving multiple disciplinary sanctions. Eighth Circuit.
The record does not contain statistics that Submitted: Jan. separate offenses involving the discretion- Filed: March ary judgment of staff objective from of- fenses. The record lacks reports
which show whether there is a correlation
between the race of the teacher adminis-
tering discipline and the race of the it,
student receiving or whether certain higher
teachers have a rate of discipline
than Dr. others. Watson testified that she
was able access some of this information
and that she knew which high schools had
rates of disciplinary sanctions and which
teachers issued more suspensions than
others, I agree cannot but person- her
al, undocumented knowledge was sufficient
to meet the court’s mandate that dis-
trict implement programs, policies, and
procedures designed to ensure that there
is no racial discrimination with respect to
student discipline.
Absent necessary records, there way
no court, court, the district or this can
reach an informed conclusion as to wheth-