School-suit sides lay out cases

District argues for unitary label; intervenors say effort short

In opening arguments Tuesday on possible unitary status for the Pulaski County Special School District, one attorney argued that the district “is more than deserving” to be released from court supervision while another attorney accused the district of falling short and “putting lipstick on a pig.”

U.S. District Chief Judge D. Price Marshall Jr. is presiding in the multiweek court hearing to determine whether the 12,000-student Pulaski County Special district has met its desegregation obligations on student discipline practices, student achievement, condition of school buildings and self-monitoring of desegregation efforts, in order to be released from court monitoring in the 37-year-old lawsuit.

A team of attorneys for black students in the district — who are known as the McClendon intervenors — are challenging the district’s assertions that it has met the requirements from its desegregation plan, Plan 2000.

“The evidence in this case will clearly demonstrate that the Pulaski County Special School District is not taking its obligations under Plan 2000 seriously,” Austin Porter, Jr., an attorney for the

McClendon intervenors, said. “The district will try to only do those things that are minimal, and we contend that they have not even done the minimal requirements. This district is not in the position to be declared unitary.”

Porter said the district’s key academic initiative Advancement Via Individual Determination has only been in place for the coronavirus-shortened 2019-20 school year; that there is an ongoing racial gap in student suspensions; the newly constructed Mills High is inferior to the new Robinson Middle School; and that other

schools in communities with high percentages of Black students have been allowed to languish.

Amanda Orcutt, a member of the attorney team for the district, said the judge is not to hold the district to perfection or to particular results but find that the district has made a good faith effort to substantially comply with the Plan 2000 mandates.

“The intervenors have consistently tried to expand the scope of the plan to ensnare the district in perpetual litigation,” Orcutt told Marshall, adding, “The evidence will show that PCSSD is more than deserving of a declaration of complete unitary status. The time has come for the court to take the reins away from the intervenors and turn them over to the experts who run the district and to a democratically elected school board.”

Orcutt noted that much has changed since 2011 when a federal judge said the district staff did not appear to know how to effectively educate underprivileged Black students.

“The same cannot be said today,” she said, noting that the district has already been released from court supervision in eight of the 12 areas in which there was fault found a decade ago.

She also pointed to the district’s “highly trained, dedicated and passionate educators — all of whom are engaged in the dayto-day work of providing equal public education to all of the district students.”

Marshall questioned Porter about what recourse the judge might have if, at the end of the hearing, the Pulaski County Special district fails to prove it is unitary in the four areas.

“Is the right result … more supervision?” Marshall asked.

Porter told the judge that the trial courts have a duty and obligation to eliminate discrimination “root and branch” in the educational setting.

“The court has the obligation to oversee — to ensure — that the school district is meeting its obligations,” Porter said.

After the opening statements from the district and intervenors, the district called on its one and only witness of the day, Alesia Smith, the deputy superintendent of learning services, to describe the district’s initiatives and efforts to improve student achievement for all students, with special attention to Black students and other students who are at risk of academic failure, and to decrease the academic performance gap between white and Black students.

Smith detailed what she called the “big rocks” of those efforts, including “Professional Learning Communities” of educators sharing student data and strategies for instruction, the Advancement Via Individual Determination initiative to help students prepare for college — particularly students who would be first-generation college students — and organizing small learning groups of students in classrooms to hone skills.

Smith described how the district uses data from different tests — ACT Aspire, NWEA Measure of Academic Progress, and biweekly common tests — to track student achievement, plan lessons and re-teaching of lessons for students.

Also on Tuesday, Marshall announced that an expert witness who is unable to travel from Texas to give testimony on behalf of the school district will be able to testify remotely, from a Dallas-area federal courthouse.

Attorneys for the school district had asked Marshall to allow one or more officers of the Advancement Via Individual Determination organization to testify on the district’s behalf from federal courthouses in California and Texas after their employer had prohibited interstate travel during the coronavirus pandemic.

Attorneys for the McClendon intervenors had objected to the prospect of long-distance testimony from designated expert witnesses Wendell Brown of Dallas and/or Dennis Johnston of San Diego.

Marshall said that there was ” good cause and compelling circumstances” to allow testimony and cross-examination to be heard over a secure line from a Dallas courthouse.

The only other option would be no testimony, he said.

“The Court is after the truth here,” and given what has been submitted by the parties regarding the district’s use of the AVID program, “I need to hear him,” Marshall said about Brown.

Porter told the judge that the decision was inconsistent with the judge’s order from last week disallowing McClendon legal team member Robert Pressman of Lexington, Mass., from participating electronically in the hearing. The McClendon team had asked for Pressman’s long-distance participation so the 79-year-old attorney wouldn’t have to travel during the pandemic.

“The issues are connected in the Court’s mind,” Marshall responded. “I want to be fair and will do my best to be fair,” and he said that if Pressman can connect to the Little Rock courtroom from a federal courthouse near his home, he may interview at least one witness, and he can make arguments to the judge via telephone throughout the hearing.

Paving the way for the participation of a remote witness and a remote attorney were not the only concessions made Tuesday to the ongoing pandemic.

Participants in the hearing and interested observers occupied two courtrooms — one room with a video and audio feed from the other courtroom — at the Richard S. Arnold Federal Court House so as to provide adequate physical distancing.

All participants in the hearing, including Marshall and witness Smith, wore face coverings at all times.

Marshall urged attorneys and witnesses to speak through their masks at a deliberate pace similar to what they would use when reciting the Pledge of Allegiance and to use their “outside voices.”

The hearing will resume at 8:30 a.m. today with additional testimony about student achievement from Smith as well as from other district administrators and Marshall’s own appointed desegregation expert, Margie Powell.