Instead, he ordered a hearing on that question. He cited a number of developments in the state's favor — two districts declared unitary, significant sums spent, the Lakeview school ruling. But he also noted arguments from the Little Rock side — on lack of state monitoring and on lack of state work to end the achievement gap between black and white students. Here's the ruling on that question. The parties are supposed to submit a schedule by Feb. 22 on discovery, briefs and the evidentiary hearing.
In the short run, that maintains the status quo on continued state support for desegregation here. That means any hope the legislature might have to capture that spending for other purposes has been delayed to some more distant point.
Judge Marshall, however, made another critical ruling. He held that the state's approval of open enrollment charter schools in Pulaski County didn't constitute a breach of its 1989 promise to not contribute to segregation in the county.
In a 30-page ruling, he said "no reasonable fact finder could conclude that the State is in material breach of the parties' 1989 Settlement Agreement as to open-enrollment charter schools in Pulaski County."
Said LRSD spokeswoman Pamela Smith:
We just learned of the ruling and have spoken with our attorneys. They have not had a chance to review/study the ruling, however, we are planning to have a public discussion about it at the next board meeting.
Said Chris Heller, the district's lawyer, on his reaction:
Disappointed. We wouldn't have filed the motion if we didn't think we had a good case so we're disappointed not to have the opportunity for a trial. I only had time to read the orders once before I had to drive to Fayetteville but I've made plans to meet with Dr. Holmes on Wednesday and asked to be on the agenda to discuss the situation with the Board on Thursday.
Re charter schools: Judge Marshall is a heckuva judge. If he says no reasonable fact-finder could argue that charter schools breach the 1989 agreement, that's an opinion worth respecting. But no reasonable fact-finder could deny that open enrollment charter schools have skimmed middle income and white students from the Little Rock School District as a whole, particularly at the middle school level, and thus made it harder to desegregate those schools. As a matter of law, that might be irrelevant. His analysis focused on charter schools and the interdistrict magnet schools financed by the 1989 agreement. It IS a matter of fact in daily schoool business, however, though I'd concede a lot of these students would have gone elsewhere (private schools for example) absent the charter schools. Or so it seems to me. The judge, however, concluded that the charters had had very little, if any, impact on desegregation, on the magnet schools or on majority-to-minority transfer programs.
To the extent that overall racial percentages and magnet enrollment haven't changed greatly, that's true. In practical terms, it isn't. An inner city middle school magnet like Dunbar, which lost many students to charters, is a good example of the direct impact. The judge looked only at direct losses from magnets to charters, not the universe of potential students lost to the charters and the sorts of students those were, though he does note that charter students tend to be better off economically than Little Rock students and the transfer group was whiter than the Little Rock District as a whole. This is particularly true in some coveted, well-financed charter schools with predominant white and middle class enrollments.
Still, there's no doubt, as the judge notes, the 1989 agreement didn't mention charter schools. They didn't exist then, after all. But he also rejected the argument that creation of charter schools — independent school districts in function and fact under state law — were analogous to the creation of a separate Jacksonville school district, something the court has prohibited until the deseg case is completed with all districts unitary. He said state funding for desegregation wasn't guaranteed for Little Rock, in any case, but for any school, including the newer charters. The explicit state commitment to six interdistrict magnet schools does not bar open-enrollment charter schools that function as magnets themselves, he said.
The judge noted that Little Rock went nine years without objecting to the charters in court. It's irrelevant, he said, that the district HAD protested many of the charter applications at the state Board of Education because of impact on desegregation. He said this was not the same thing as arguing in court that the settlement had been violated. The district should have spoken up sooner, he said. The judge also said the state had an obligation under law to consider desegregation impact; had vowed to do so and failure there was a state issue. This is another sad part of this story. The state Board of Education now takes this responsibility seriously. In the beginning, it did not. Early charters were located in white majority neighborhoods and, unsurprisingly, attracted white majority student bodies, despite promises to seek greater diversity.
Many more charter school applications are waiting in the wings. And, if the wealthy tycoons financing the charter movement have their way, they'll soon have control of the state approval process. No matter. Judge Marshall has ruled the charter school issue has been decided for good. It is a day of celebration for the Waltons and charter school advocates. The Little Rock School District now must consider the future and much more than whether to file a pro forma appeal of this decision.