Little Rock School District v. Pulaski County Special School District No. 1

WILSON, District Judge.

INDEX

Page

I. Introduction .992

II. The Long History Of Desegregation Litigation In Pulaski County t> O 03

A. 1956 Through 1973 . t-05 03

B. Events leading to the initiation of this action. O 03 03

C. Inter district Litigation And Inter district Relief. O O O t*H

D. The 1990 Settlement Agreement And Settlement Plans. CO O O tH

*991 LRSD’s Implementation Of Its Desegregation Obligations Between 1991 And 1995 .1005 W

Joshua’s Request For An Interim Award Of Attorney’s Fees For fe

Performing Monitoring Activities After The 1990 Settlement .. O T*H o r — i

LRSD’s First Attempt To End Federal Court Jurisdiction. T — I o 1 — 1

The Perplexing Final Resolution Of Joshua’s Request For Still More Attorneys’ Fees From LRSD . CO T — I o T — (

Final Approval Of Revised Desegregation And Education Plan. C"-7 — i o 7 — 1 t — 5

J. LRSD’s Implementation Of Its Obligations Under The Revised Plan ... GO l-H o 7 — 1

1020 LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan. M

III.Relevant Provisions Of Revised Plan. 1-L o DO H

A. LRSD’s Obligation Of Good Faith. o K> W

B. LRSD’s Student o N> CO

1023 C. LRSD’s Obligations To Improve And Remediate The Academic Achievement Of African-American Students.•.

1023 D. LRSD’s Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors.

1024 E. LRSD’s Obligations To Develop Remedies, Where Appropriate, For Racial Disparities In Programs And Activities.

1024 F. Procedure For Raising Compliance Issues.

1025 G. Duration Of Revised Plan.

1025 H. Procedure For Seeking Unitary Status.

I. Effect Of LRSD’s Failure To Meet “Specific Goals” In The Revised Plan ...1025

IV. Controlling Principles Of Law.1026

A. The Evolving Concept of Unitary Status.1026

B. Applicable Standard For Determining If LRSD Is Unitary.1031

C. Burden Of Proof.1033

D. Meaning Of “Substantial Compliance”.1035

E. The Metaphysics Of Using The “Achievement Gap” As A Factor In Deciding Unitary Status.1036

V. Findings Of Fact. 1040

A. Good Faith .1041

B. Student Discipline.1046

C. Extracurricular Activities.1057

D. Advanced Placement Courses .1061 Promote Participation and Remove Barriers .1062 Identify and Encourage .1066 Assist.1068

E. Guidance And Counseling.1069

F. Academic Achievement.1070

G. Program Assessment/Program Evaluation.1076

VI.Conclusions Of Law.1082

A. Unitary Status.1082

B. Burden Of Proof.1082

C. Substantial Compliance.1082

D. Good Faith .1082

E. Student Discipline.1082

F. Academic Achievement.1082

G. Partial Unitary Status.1083

H. Time To Fly.1084

VII.Compliance Remedy.1087

*992 VIII. Conclusion. .1088

MEMORANDUM OPINION 1

I. Introduction 2

On December 12, 1990, the Eighth Circuit Court of Appeals approved the “Pulaski County School Desegregation Case Settlement Agreement,” as revised September 28, 1989; separate Settlement Plans for the Little Rock School District (“LRSD”), the North Little Rock School District (“NLRSD”), and the Pulaski County Special School District (“PCSSD”), dated January 31, 1989; and a separate Interdistrict Settlement Plan. 3 LRSD v. PCSSD, 921 F.2d 1871 (8th Cir.1990). At that time, both the district court and the Eighth Circuit believed that this historic settlement created the “benchmark for the future path of this case,” Appeal of LRSD, 949 F.2d 253, 255 (8th Cir.1991), and “a sure guide for ending this dispute and getting the parties out of court.” LRSD v. PCSSD, 769 F.Supp. 1491, 1494 (E.D.Ark. 1991), order vacated, 949 F.2d 253 (8th Cir.1991).

In the years following the Eighth Circuit’s approval of the parties’ final settlement of this case, all three Pulaski County school districts implemented their respective Settlement Plans under the supervision of the district court and the Office of Desegregation Monitoring (“ODM”). 4 Subsequently, the district court and Eighth Circuit established guidelines for allowing the parties to make agreed changes to the details of the Settlement *993 Plans, as long as they did not affect the “major substantive commitments to desegregation” embodied in those Plans. Appeal of LRSD, 949 F.2d at 256 ; see also LRSD, 769 F.Supp. 1491 ; LRSD v. PCSSD, 769 F.Supp. 1483 (E.D.Ark.1991), order vacated, 949 F.2d 253 (8th Cir.1991).

Between 1991 and 1996, LRSD worked toward implementing its desegregation obligations under the settlement documents. On May 1, 1992, the district court entered an Order (docket no. 1587) approving certain changes to LRSD’s 1990 Settlement Plan and the Interdistrict Settlement Plan. A copy of LRSD’s modified settlement plan and interdistrict plan, referred to as “LRSD’s May 1992 Desegregation Plan” and the “May 1992 Interdistrict Desegregation Plan,” were attached to the court’s May 1,1992 Order.

By 1996, it had become apparent to the parties and the district court that some of the desegregation obligations imposed on LRSD by the settlement documents might never be successfully implemented, regardless of LRSD’s best efforts. Accordingly, on September 25, 1996, Judge Wright entered a Memorandum Opinion (docket no. 2821) in which she “invite[d] the parties to modify the parts of the [settlement] plan that are ineffective or unworkable.” As a result, in late 1996 and 1997, LRSD and the Joshua Intervenors (“Joshua”) 5 entered into protracted negotiations to modify various aspects of LRSD’s Settlement Plan. These negotiations bore fruit in the January 16, 1998 Revised Desegregation and Education Plan (the “Revised Plan”), which LRSD and Joshua jointly submitted to the district court for approval on January 21, 1998 (docket nos. 3107 and 3136). 6

On April 10, 1998, the district court entered an Order (docket no. 3144) approving the Revised Plan, 7 which it viewed as “an entirely new consent decree or settlement agreement between LRSD and Joshua.” 8 *994 Unlike LRSD’s 1990 Settlement Plan, as modified by the May 1992 Desegregation Plan, the Revised Plan included a section establishing a specific procedure and time schedule under which LRSD might achieve unitary status:

SECTION 11: Unitary Status.

At the conclusion of the 2000-01 school year, the district court shall enter an order releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations 'provided that LRSD has substantially complied with its obligations set forth in this Revised Plan. In anticipation of release, LRSD shall issue a report on March 15, 2001 indicating the state of LRSD’s compliance with the Revised Plan. Any party challenging LRSD’s compliance bears the burden of proof. If no party challenges LRSD’s compliance, the above-described order shall be entered without further proceedings.

(Emphasis added.) Because none of the parties appealed the district court’s April 10 Order approving the Revised Plan, it became a final consent decree, which now governs LRSD’s desegregation obligations and establishes the path that LRSD must follow to achieve unitary status and release from federal court supervision. 9

On March 15, 2001, LRSD filed a Request for Scheduling Order and Compliance Report (docket no. 3410), 10 pursuant to Section 11 of the Revised Plan, seeking “an order finding LRSD unitary with regard to all aspects of school operations.” On June 25, 2001, Joshua filed an Opposition to LRSD’s Compliance Report (docket no. 3447), which vigorously challenged LRSD’s contention that it was entitled to a declaration of unitary status and argued that LRSD was not in “substantial compliance” with certain of its desegregation obligations under the Revised Plan.

On July 5 and 6, August 1 and 2, and November 19 and 20, 2001, my colleague and predecessor in this case, United States Chief District Judge Susan Webber Wright, conducted five and one-half days *995 of evidentiary hearings to develop the facts surrounding what Joshua believed were their three strongest grounds 11 for challenging LRSD’s request for unitary status: first, that LRSD had not acted in good faith in implementing its desegregation obligations (§ 2.1 of the Revised Plan); second, that LRSD was not in substantial compliance with its obligations regarding student discipline (§§ 2.5 through 2.5.4 of the Revised Plan); and third, that LRSD was not in substantial compliance with its obligations to implement programs, policies, and procedures designed to improve the academic achievement of African-American students (§§ 2.7, 2.7.1, and 5.1-5.8 of the Revised Plan).

In a scheduling conference on December 11, 2001, Judge Wright designated the week of January 28, 2002, to hear no more than five additional days of testimony regarding the last three areas of the Revised Plan in which Joshua claimed LRSD had failed to substantially comply with its obligations: advanced placement courses (§§ 2.6 and 2.6.2 of the Revised Plan); extracurricular activities (§§ 2.6 and 2.6.3 of the Revised Plan); and guidance counseling (§ 2.6.1 of the Revised Plan) (docket no. 3597 at 31-37). 12 Judge Wright made it clear that, after she had heard the testimony concerning these last three areas of LRSD’s alleged noncompliance, she would decide the question of unitary status. Id. at 36-37.

On January 3, 2002, after presiding over this case with great perseverance and distinction for eleven years, 13 Judge Wright determined that it was the “appropriate time to reassign this case to another judge with minimal disruption to the parties and to allow a smooth transition” (docket no. 3569). That same day, the case was assigned to me by random selection (docket no. 3570). 14

On March 15, 2002, one year to the day after submitting its Request for Scheduling Order and Compliance Report, LRSD filed a Motion for an Immediate Declaration of Unitary Status (docket no. 3580) and Supporting Memorandum Brief (docket no. 3581). On May 9, 2002, I entered a fourteen-page Order (docket no. 3598) explaining to the parties my understanding of the current status of the case. Because the passing of the baton is a key factor in any relay race, the May 9 Order noted:

Judge Wright, my immediate predecessor in this case, has done an outstanding *996 job of narrowing the issues and establishing a schedule that should allow me to conduct no more than five additional days of evidentiary hearings on the four remaining issues and then be in a position to decide the LRSD’s Motion for an Immediate Declaration of Unitary Status. For that reason, the Court intends to pick up where Judge Wright left off, without disturbing the schedule that was established and agreed to by the parties and the Court during the December 11, 2001 hearing.

May 9, 2002 Order at 12 (docket no. 3598) (footnote omitted). In a telephone conference with counsel on May 14, 2002, I rescheduled for July 22-26, 2002, the last five days of evidentiary hearings on the question of whether LRSD had substantially complied with its obligations under the Revised Plan. In an Order (docket no. 3600) entered the next day, I set forth the schedule adopted during the May 14 telephone conference.

On May 30, 2002, Joshua filed their Response in Opposition to LRSD’s Motion for an Immediate Declaration of Unitary Status (docket no. 3604). On June 7, 2002, LRSD filed a Reply Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3607).

During the week of July 22, I completed the evidentiary hearings to develop the facts relevant to the determination of whether LRSD is entitled to a declaration of unitary status. Thus, the record is now complete, and the issue of unitary status is ready for decision.

During the last eight months, I have spent many an hour trying to educate myself on the significant rulings and agreements that have shaped the current contours of this twenty-year-old case. 15 I have also read a ground-slide load of cases to gain an understanding of the evolution of school desegregation litigation during the last five decades and to grasp the issues a court must resolve in deciding whether a school district has achieved unitary status. I have learned that desegregation cases are invariably complex, involve difficult-to-understand jargon, and frequently generate book-length appellate decisions, with seemingly obligatory concurring and dissenting opinions. Of course, I have found none of these discoveries to be surprising. After all, the issue of desegregation goes to both the heart of the Fourteenth Amendment’s promise of “equal protection” and the dark soul of what was, in many parts of the country in the 1950’s, a de jure segregated public school system that only grudgingly gave ground to integration — after most school districts had exhausted all available means of delay.

In 1954, the Supreme Court rendered its landmark decision in Brown v. Board of Education, 347 U.S. 483, 495 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954) (“Brown /”), holding that “in the field of public education the doctrine of ‘separate but equal’ has no place” and that segregation of public education is a denial of “equal protection of the laws.” 16 Three years later, Little Rock suddenly found itself at the epicenter of this country’s first major school desegregation effort.

In early August of 1957, LRSD school officials (including the school board) were prepared to implement a plan to admit a small number of African-American stu *997 dents to Central High School. Arkansas’s Governor, Orval Faubus, ostensibly supported that plan, which, if implemented with the support of the State, may well have led to the peaceful integration of Central. As it turned out, however, just as school started, Faubus called out the Arkansas National Guard to prevent the “Little Rock Nine” from entering Central. 17

Faubus, who was known as somewhat of a moderate up to that time, shamelessly fanned the flames of racism under the rubric of “state’s rights,” “interposition,” and the like. Thus, Little Rock became the first great legal battleground in the long struggle to desegregate this country’s public school system, a distinction that has left lasting wounds in this community. One can only wonder how the history of school desegregation might have been different if the first southern governor to squarely face the dictates of Brown I had done his plain, sworn constitutional duty.

In view of the historical importance of this case, I believe I should review the long and winding path trod by LRSD in carrying out its constitutional duty, under Brown I and its progeny, to rid the Little Rock school system; to the extent practicable, of the vestiges of de jure segregation. Without at least some understanding of that history, it is impossible to appreciate the deep passions this case still stirs in the litigants, lawyers, and judges who have been involved in almost five decades of continuous, unremitting school desegregation litigation in Pulaski County. 18

II. The Long History Of Desegregation Litigation In Pulaski County

A. 1956 Through 1973

In LRSD v. PCSSD, 584 F.Supp. 328, 331-32 (E.D.Ark.1984), the late and distinguished United States District Judge Henry Woods, the first judge to preside over this case, chronicled in great detail the history of desegregation in Pulaski County. In his scholarly decision, Judge Woods described: the operation of LRSD in 1930, when it was a de jure segregated school district operating under the “separate but equal” doctrine; 19 the Court’s decision in Brown I, which overturned Plessy v. Ferguson; the court-ordered implementation of a plan to admit a small number of African-American students to Little Rock Central High School in September of *998 1957; 20 Governor Faubus’ use of Arkansas National Guard troops at Central to place it “off limits” to African-American students and the subsequent removal of those troops after the issuance of an injunction by United States District Judge Ronald Davies in Aaron v. Cooper, 156 F.Supp. 220 (E.D.Ark.1957); 21 the nine courageous African-American students entering Central on September 23, 1957, in the face of a large, threatening mob of whites; and, finally, President Eisenhower dispatching troops to Central to ensure the safety of the African-American students and to enforce Judge Davies’ desegregation order. 22

Judge Woods also traced desegregation plans advanced by LRSD in “the decade of 1960 in a good faith effort to provide a solution to continuous litigation” and the failure of those plans in “the hysterical political atmosphere of that period.” LRSD, 584 F.Supp. at 334 . In 1966, the Eighth Circuit approved LRSD’s “freedom of choice” desegregation plan, which remained in effect through the 1968-69 school year. Clark v. Board of Education of LRSD, 369 F.2d 661 (8th Cir.1966). Significantly, in its decision, the Court noted LRSD’s good faith commitment to desegregation:

Many of the problems encountered are not of the Board’s making or choosing and, we believe, the Board has evidenced a genuine desire to follow the commands of the Brown case to ultimately place into effect a non-racially operated school system.

Id. at 666. 23

In Green v. County School Board of New Kent County, 391 U.S. 430, 439-40 , 88 S.Ct. 1689 , 20 L.Ed.2d 716 (1968), the Court' held that school districts such as LRSD, which were the product of de jure segregation, could not satisfy their constitutional obligations under “freedom of choice” plans. Therefore, LRSD formulated a new desegregation plan for the 1969— 70 school year that was based on geographic attendance zones. However, because segregated housing patterns created *999 a number of racially identifiable schools under the plan, the Eighth Circuit found it to be unconstitutional. Clark v. Board of Education of LRSD, 426 F.2d 1035, 1043 (8th Cir.1970).

In the 1971-72 school year, LRSD began crosstown busing to achieve racial balance in grades 6 through 12. Clark v. Board of Directors of LRSD, 328 F.Supp. 1205, 1209, 1214 (E.D. Ark.1971), rev’d in part, 449 F.2d 493 (8th Cir.1971). The following school year, crosstown busing was used to achieve racial balance in grades 4 and 5. Clark v. Board of Education of LRSD, 465 F.2d 1044, 1046 (8th Cir.1972). Finally, during the 1972-73 school year, all LRSD schools and all LRSD grade levels were racially balanced.

B. Events Leading To Initiation Of This Action

On July 9, 1982, United States District Judge William R. Overton entered a Memorandum and Order in Clark which contained many of the findings that underpinned LRSD’s subsequent decision to file this action. 24 In many respects, Judge Overton’s decision was a ringing endorsement of LRSD for successfully implementing its school desegregation plan over the last nine years. For example, Judge Over-ton explicitly found: (1) “no evidence of vestiges of discrimination in the district policies or practices”; (2) “the district has done an admirable job in the task of desegregation”; and (3) “the Little Rock School District has operated in compliance with court decrees for nine years as a completely unitary desegregated school system and isolated complaints of discrimination without persuasive specific evidence to the contrary do not detract from that record.” July 9, 1982 Memorandum and Order at 16 (docket no. 3581) (emphasis added). 25

Although Judge Overton found that LRSD was operating “as a completely unitary desegregated school system,” he made a number of findings that raised serious questions about the future prospects for LRSD remaining an integrated school district. For example, Judge Over-ton found that: (1) in the years after the desegregation of LRSD elementary schools in 1973-74, “there has been a steady trend of increasing black enrollment and decreasing white enrollment in the elementary schools ... and [to a lesser extent] in the upper grades”; 26 (2) despite *1000 LRSD’s efforts to modify student assignment plans to correct the growing disparity in the black-white student ratio in elementary schools, “[a]ll of the persuasive evidence indicates the school district will have enrollment which is essentially all black, particularly in the elementary grades, within the next few years”; and (3) by the fall of 1981, LRSD faced a host of problems surrounding the school attendance plan, including a “significant disparity in the black-white ratio at the various elementary schools,” complaints of black parents “that their children were being bused across the city to attend all black classes,” and the defeat of “the last two millage increase proposals ... by the electorate ... [creating] severe financial problems and an eroding financial base.” July 9, 1982 Memorandum and Order at 1-6, attached as Exhibit 1 to LRSD’s Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581).

In an effort to retain and supplement the shrinking pool of white students, Judge Overton approved the Partial K-6 Plan, 27 which created twelve K-6 neighborhood schools and retained fourteen paired schools with grades K-3 at one site and grades 4-6 at another. Eight of the twelve neighborhood schools were racially balanced, and four were virtually all black. Under the plan, Booker Junior High School became an intermediate school; a magnet school was to be created west of University Avenue; and a committee was appointed to ensure that the four virtually all black schools would be treated equally. See July 9, 1982 Memorandum and Order at 6-11. 28

Finally, Judge Overton noted that LRSD had taken a number of steps to address the problems that confronted it. First, LRSD had commissioned a study and report by a “Desegregation Assistance Team” at Stephen F. Austin University on its desegregation efforts and the challenges it faced in the future. 29 Second, LRSD had begun investigating “the possibility of seeking an interdistrict remedy through legal proceedings against the adjacent County School District and [had] hired a law firm to pursue that remedy.” See July 9, 1982 Memorandum and Order at 6.

C. Interdistrict Litigation And Inter-district Relief

On November 30, 1982, LRSD filed this action — a new case 30 — against PCSSD, NLRSD, the State of Arkansas, and the Arkansas Department of Education (“ADE”) seeking consolidation of the three Pulaski County School Districts as the most appropriate and effective desegregation remedy for all three school districts. In its- Complaint (docket no. 10), LRSD alleged that PCSSD and NLRSD engaged in “a series of intradistrict constitutional violations with interdistrict effects” and *1001 that the State of Arkansas and Arkansas Department of Education (hereinafter referred to collectively as the “State/ADE”), through funding and other state action, “operated, maintained and/or condoned a racially segregated structure of public education under color of state law.”

After conducting a trial on the merits of the claims asserted in LRSD’s Complaint, Judge Woods entered a Memorandum Opinion setting forth detailed findings of fact and conclusions of law to support his determination that each of the three Defendants had violated the Constitution by creating “racial isolation between and among the districts” that had caused six specific “interdistrict effects.” LRSD, 584 F.Supp. at 349-51 . 31 Judge Woods noted that, at a later date, he would conduct a hearing to take evidence regarding the precise nature of the remedy that should be fashioned to cure the interdistrict effects of “substantial interdistrict segregation.” Id. at 852-53.

During the subsequent remedial hearings, PCSSD advanced a plan that retained the three autonomous school districts and relied on the development of specialty or magnet schools to attract students from one district to another. LRSD v. PCSSD, 597 F.Supp. 1220 , 1222-23 (E.D.Ark.1984). NLRSD advanced a plan that retained the three autonomous school districts, transferred certain geographic areas from PCSSD to LRSD and from LRSD to PCSSD, and depended heavily on the use of majority to minority transfers (“M to M transfers”) to achieve racial balance. Id. at 1223. Although not advancing a specific plan, Joshua used testimony from two expert witnesses to suggest three options: (1) altering boundary lines in accordance with the NLRSD plan; (2) altering boundary lines to transfer other geographic areas among all three districts; or (3) transferring certain geographic areas to LRSD and having all of the remaining area of PCSSD consolidated with NLRSD. Id. at 1223-24. LRSD advanced a plan that involved the countywide consolidation of all three school districts. Id. at 1224-25.

After considering all of the evidence, Judge Woods concluded that “a countywide interdistrict remedy must be utilized to correct the countywide interdistrict violation found to exist and that this is the only manner of placing the victims of this discrimination in the position they would have occupied absent the discrimination.” Id. at 1225. 32 Judge Woods also concluded that the State/ADE: (a) failed to discharge its affirmative duty to encourage desegregation, which had an interdistrict effect on LRSD, PCSSD, and NLRSD; and (b) had “remedial responsibilities with respect to this case.” Judge Woods noted that the “precise nature of [the State/ADE’s] financial and oversight responsibilities must await further refinement of the consolidation plan and development of a budget for such consolidated district.” Id. at 1228.

PCSSD, NLRSD, and the State/ADE appealed Judge Woods’ decisions in LRSD, 584 F.Supp. 328 , and LRSD, 597 F.Supp. 1220 . The Eighth Circuit, sitting en banc, affirmed Judge Woods’ finding on liability for interdistrict constitutional violations by PCSSD, NLRSD, and the State/ADE, but reversed his remedy of consolidation 33 on *1002 the ground that, while the interdistrict violations of the Constitution called for an interdistrict remedy, consolidation of the three school districts was not required. LRSD v. PCSSD, 778 F.2d 404, 429-34 (8th Cir.1985). 34

Rather than remanding the case to the district court for further findings and a detailed remedial decree, the Court spelled out its own interdistrict remedy. 35 Id. at 434-36 . Although this interdistrict remedy allowed LRSD, NLRSD, and PCSSD to remain autonomous, it called for, among other things: changing boundaries between PCSSD and LRSD; revising attendance zones so that each school would reasonably reflect the racial composition of its district within a permitted variance of plus or minus 25% of the minority race; encouraging intradistrict and interdistrict M to M transfers; and creating a limited number of magnet or specialty schools. Id. at 435-36 . The principles of the inter-district remedy outlined in the majority opinion later became the basis for the desegregation plans that were implemented in each of the three Pulaski County school districts.

LRSD proceeded to develop a “controlled choice” desegregation plan, which was approved by Judge Woods on February 27, 1987 (docket no. 739). Under this plan, LRSD was divided into two attendance zones of approximately equal racial balance. Students were assigned to schools so that each grade at each school reflected the racial balance within that attendance zone. After a student was assigned to a school, the student’s parents could request reassignment to another school within their attendance zone. That request would be granted so long as each school would remain within a range of plus or minus 12.5% of the black student population at the school. The plan also provided for eight magnet schools (four elementary, two junior high, and two high schools), with seats reserved for students of each of the three Pulaski County school districts. The target racial composition of the magnet schools was 50%-50%. Finally, the plan established a Magnet Review Committee, with representatives of each of the three districts, along with a non-voting member representing Joshua and the Knight Intervenors. 36 The controlled choice plan was implemented beginning with the 1987-88 school year (docket no. 670).

While the controlled choice plan was intended to create racial balance, it resulted in many central and east Little Rock schools having fewer than fifty white students. For that reason and others, Judge Woods later found the plan to be “ill-conceived.” LRSD v. PCSSD, 716 F.Supp. 1162 , 1188 (E.D.Ark.1989), rev’d., 921 F.2d 1371 (1990). LRSD submitted a new desegregation plan for the 1988-89 school year, which all parties agreed would be a “stabilizing year” to allow LRSD to carefully plan for the 1989-90 school year and *1003 beyond. Id. With that understanding, Judge Woods approved LRSD’s proposed desegregation plan for the 1988-89 school year. Id.

D. The 1990 Settlement Agreement And Settlement Plans

After long and difficult negotiations that began in 1988, LRSD, PCSSD, NLRSD, Joshua, and the State/ADE agreed to a global settlement of all aspects of this case. In the spring of 1989, the parties submitted the following final settlement documents 37 to Judge Woods: (a) The Pulaski County School Desegregation Case Settlement Agreement, 38 which, among other things, fixed the State/ADE’s total financial liability to the three school districts to be an amount “not to exceed $129,750,-000”; 39 and (b) separate comprehensive “Settlement Plans” for LRSD, NLRSD, and PCSSD and a comprehensive “Inter-district Settlement Plan.” 40 Judge Woods rejected each of the four separate Settlement Plans 41 and the 1990 Settlement Agreement, 42 as submitted; ordered the parties to implement a more comprehensive plan known as the Tri-District Plan; appointed Eugene Reville to the position of Metropolitan Supervisor; and conferred upon Mr. Reville a wide array of powers over all three school districts that, in many respects, closely resembled consolidation— the remedy the Eighth Circuit had previously rejected. LRSD, 716 F.Supp. at 1164-69.

Shortly after Judge Woods entered his decision, the Arkansas Legislature passed a bill funding the over $100,000,000 that the State/ADE was obligated to pay to the three school districts under the 1990 Settlement Agreement. Based on this new development, the parties resubmitted the Settlement Agreement to Judge Woods for approval. On December 11, 1989, Judge Woods entered an Order which added certain new conditions to the Settlement Agreement; approved it, as modified; and directed the parties to carry out its terms. LRSD v. PCSSD, 726 F.Supp. 1544 , 1549- *1004 51 (E.D.Ark.1989). Judge Woods’ December 11 Order also specifically disapproved that portion of the Settlement Agreement which called for LRSD to pay $2,000,000 of the $3,150,000 in attorneys’ fees that the parties had agreed to pay to Joshua’s counsel. Id. at 1554-56 . 43

Each of the school districts and Joshua appealed the district court’s decisions to the Eighth Circuit, which reversed and remanded the case with instructions to approve the 1990 Settlement Agreement and the four Settlement Plans, as submitted by the parties. LRSD, 921 F.2d 1371 . In reaching that decision, the Court made a number of important rulings that have had a profound influence on future developments in the case.

First, the Court noted that the appeal arose from settlements agreed to by all the parties (a “most important fact”) and that “[t]he law strongly favors settlements” which should be “hospitably” received:

This may be especially true in the present context — a protracted, highly divisive, even bitter litigation, any lasting solution to which necessarily depends on the good faith and cooperation of all the parties, especially the defendants.

Id. at 1383. As further support for that conclusion, the Court made the following observation:

This is, after all, no ordinary litigation. The NAACP Legal Defense and Educational Fund, its lawyers and its predecessors, have vigorously prosecuted this case and its ancestors for more than 30 years. Absent an extremely good reason — and we have been given none — we are reluctant to disregard their judgment as to what is best for their own clients.

Id. at 1386.

Second, the Court explicitly recognized the important role of future monitoring in the case and the need for it to continue “for a long time”: “In the present case, for example, any remedy will necessarily require some judicial supervision — monitoring, at least — for a long time.” Id. at 1383 (emphasis added). The Court also emphasized the importance of the district court ensuring that “the settlement plans [are] scrupulously adhered to,” that monitoring is done effectively, and that “appropriate action is taken if the parties do not live up to their commitments.” Id. at 1386.

Third, the Court recognized that “a necessary condition of our holding that the plans are not facially unconstitutional is that the parties’ compliance with them will be carefully monitored.” Id. at 1388. Therefore, the Court directed the creation of the ODM “to be headed by a Monitor appointed by the District Court,.with such additional personnel as the District Court shall deem appropriate.” Id.

Finally, the Court reversed Judge Woods’ decision on attorneys’ fees and awarded counsel for Joshua $3,150,000, the full amount of attorneys’ fees provided for under the Settlement Agreement. These attorneys’ fees were allocated and payable among the parties as follows: LRSD ($2,000,000); 44 State/ADE ($750,000); PCSSD ($300,000); and NLRSD ($100,-000). Id. at 1390.

*1005 In an Order entered July 6, 1990, Judge Woods concluded that, because he was “unable to successfully implement a plan to bring equity to the children of this county under the restrictions imposed by the Court of Appeals,” the time had come “for another judge to assume the burden of this litigation since it is my unalterable decision to recuse.” LRSD v. PCSSD, 740 F.Supp. 632, 636 (E.D.Ark.1990). Later that day, the case was reassigned, by random selection, to the Honorable Susan Webber Wright (docket no. 1373).

E. LRSD’s Implementation Of Its Desegregation Obligations Between 1991 And 1995

Section IV of the Settlement Agreement explicitly provided that the State/ ADE “conditions this settlement upon its dismissal from this Litigation with prejudice in accordance with the terms of Attachment A.” Attachment A was a “Release of All Claims Against the State,” pursuant to which all parties to this litigation released all claims they might have against the State/ADE relating “to racial discrimination or segregation in public education in the three school districts in Pulaski County, Arkansas or to the violation of constitutional or other rights of school children based on race or color in the three school districts in Pulaski County, Arkansas.” Attachments B, C, and D were identical releases that ran in favor of LRSD, PCSSD, and NLRSD. Finally, Attachments A, B, C, and D each contained the same language providing that this action (LR-C-82-866) “is to be dismissed with prejudice” as to the State/ADE, LRSD, PCSSD, and NLRSD. Thus, the Settlement Agreement expressly provided for the dismissal of this case, with prejudice, “except that the Court may retain jurisdiction to address issues regarding implementation of the Plans. ” Attachments A, B, C, and D to the Settlement Agreement (docket no. 1174) (emphasis added).

On the date the Eighth Circuit entered its decision approving the 1990 Settlement Agreement and Settlement Plans, only the State/ADE had moved to be dismissed, with prejudice, as a party to this action. 45 Thus, one of Judge Wright’s first rulings in this case was a January 18, 1991 Order that: (1) dismissed the State/ADE as a party to this action “pursuant to the terms of the parties’ settlement agreement”; and (2) converted the Office of Metropolitan Supervisor to the ODM, which she “vested with the authority to monitor the school districts’ compliance with the settlement plans and settlement agreement, including "any future modification of, or addition to, such plans and agreements” (docket no. 1418). Ann Marshall, Arma Hart, Polly Ramer, and Linda Bryant, all of whom previously worked for Mr. Reville in the Office of Metropolitan Supervisor, were allowed to “continue in their present positions subject to the later approval of the court-appointed monitor.”

In a Memorandum Opinion entered February 28, 1991 (docket no. 1442), the district court made it clear that, even though *1006 the State had now been dismissed as a party, it remained obligated to comply with its settlement obligations, which “when understood in conjunction with the language in both the Eighth Circuit’s order of December 12, 1990, and this Court’s order of January 18,1991, also obligate the State to continue funding the ODM” by making the annual contribution of $200,000 required in Judge Woods’ June 27, 1989 Order. 46 Likewise, LRSD, NLRSD, and PCSSD were required to continue their annual funding of the ODM on a per pupil pro-rated basis. On April 5, 1991, Judge Wright entered a Memorandum and Order (docket no. 1459) that appointed Ms. Ann Marshall Desegregation Monitor, at an annual salary of $98,000. 47

*1007 During the first few months of 1991, LRSD, PCSSD, NLRSD, and Joshua entered into negotiations that resulted in numerous modifications to the 1990 Settlement Plans. It was the parties’ position that they were authorized to make those changes based upon language in the Eighth Circuit’s December 12, 1990 decision providing that the parties were “free, by agreement, to modify the settlement plans ... subject, of course, to the approval of the District Court.” LRSD, 921 F.2d at 1393 n. 15. Subsequently, the parties submitted the modified Settlement Plans to the district court for approval.

On June 21, 1991, Judge Wright entered a Memorandum and Order rejecting all of the “legion of proposed modifications” to the Settlement Plans on the ground that they fell “outside the narrow realm of modifications and adjustments deemed permissible by the Eighth Circuit [in its December 12, 1990 decision].” LRSD, 769 F.Supp. at 1483,1489. 48

On July 15, 1991, the district court entered a lengthy Memorandum and Order denying the parties’ motion to reconsider its rejection of their proposed modifications to the 1990 Settlement Plans. LRSD, 769 F.Supp. 1491 . In doing so, Judge Wright made it clear that: (a) she disagreed with the parties’ position that the Settlement Plans are “fluid, open to continual and considerable revision as long as the parties agree and the changes are not facially unconstitutional”; and (b) she viewed the Eighth Circuit’s approval of the Settlement Plans as being “akin to establishing a benchmark ... a sure guide for ending this dispute and getting the parties out of court.” Id. at 1494 . LRSD, NLRSD, PCSSD, and Joshua appealed on the ground that the district court’s decisions “confined them within limits that are too narrow, and that all of their proposed changes, being constitutional, workable, and fair, should have been approved.” Appeal of LRSD, 949 F.2d at 255 .

In affirming in part and reversing in part, the Eighth Circuit noted that “[t]here is much in the District Court’s opinions with which we agree,” including the observation that the 1989 settlement “should indeed be a benchmark for the future path of this case.” Id. However, the Court went on to hold that the district court was “too strict with itself’ in not allowing the parties to modify details of those settlement plans that did not affect the three school districts’ “major substantive commitments to desegregation”:

*1008 The desegregation obligations undertaken in the 1989 plan are solemn and binding commitments. The essence and core of that plan should not be disturbed.

... If a question is truly one only of detail, not affecting the major substantive commitments to desegregation, the District Court has the authority to consider it.

Id. at 256 . 49 Finally, to provide guidance to the district court, the Eighth Circuit set forth seven elements that form the “essence and core” of the Settlement Plans and from which there can be “no retreat ”:

It may be helpful for us to state those elements of the 1989 plan that we consider crucial, and with respect to which no retreat should be approved. They are as follows: (1) double funding for students attending the incentive (virtually all-black) schools; (2) operation of the agreed number of magnet schools according to the agreed timetable; (3) operation of the agreed number of inter-district schools according to the agreed timetable; (4) intradistrict desegregation of PCSSD according to the agreed timetable; (5) the agreed effort to eliminate achievement disparity between the races; (6) the agreed elements of early-childhood education, at least in the incentive schools; and (7) appropriate involvement of parents.

Id. (emphasis added).

On May 1, 1992, Judge Wright entered an Order approving most of the proposed modifications to LRSD’s 1990 Settlement Plan and the Interdistrict Settlement Plan, which the parties referred to as “LRSD’s May 1992 Desegregation Plan” and the “May 1992 Interdistrict Desegregation Plan.” Judge Wright attached copies of both of these Plans to her May 1, 1992 Order (docket no. 1587).

LRSD’s implementation of its obligations under the 1992 Plans did not always go smoothly. For example, on March 19, 1993, Judge Wright delivered a strong statement to LRSD’s School Board and attorneys explaining the importance of LRSD fully and completely implementing its desegregation obligations under the Settlement Plans:

Since the time of victory by the Little Rock School District in this case, when the Court of Appeals granted almost every facet of relief requested by Little Rock, the Little Rock School District has shown a tendency to drag its feet and act as if it had lost, rather than won, the litigation which it instituted.

The Little Rock School District and the other school districts are in court because the Little Rock School District won its case and won the relief it requested. Yet the major complainer, the chief whiner, the number one barrier to a legitimate declaration of a unitary desegregated school system is the victorious complaining party, the Little Rock School District. The biblical reference, in a different context, is to the effect that if you ask, you will receive. Well, you asked, you got it, and it is the basic job of this Court to see that you receive it in full measure.

I have never seen, heard or read of a case in which the victors conducted themselves like the vanquished — until *1009 now. If we have to have two full hearings a month, in which Board members are required to be present, then we will do so. We will do everything that is required to see that you take the medicine to achieve the cure that you asked the Federal Courts to give you.

Judge Wright’s Statement to LRSD Board members and Counsel at 2-3 and 6, attached as Exhibit 1 to docket no. 2730. 50 - Between 1991 and 1996, almost all of the district court’s Orders involving LRSD related to the following issues: the approval of LRSD’s annual budgets (docket nos. 1759; 1897, 1958, 2216, 2280, 2319, and 2709); LRSD’s closing of certain elementary schools (docket nos. 1926 and 2351); and LRSD’s designation and construction of the interdistrict and magnet schools called for under the Settlement Plans (docket nos. 1550, 1832, 1848, 1895, 2225, and 2329). During this period of time, the Eighth Circuit also entered several important decisions that: (1) extended school district millages under the 1990 Settlement Agreement, LRSD v. PCSSD, 971 F.2d 160 (8th Cir.1992); (2) upheld the new zoning plan for electing school board members for LRSD and PCSSD, LRSD v. PCSSD, 56 F.3d 904 (8th Cir.1995); and (3) clarified language in the 1990 Settlement Agreement regarding the State’s funding obligations to LRSD, PCSSD, and NLRSD, LRSD v. PCSSD, 83 F.3d 1013 (8th Cir.1996).

On November 30, 1995, LRSD filed a Motion for Order of Dismissal (docket no. 2573), requesting the district court to dismiss this case, with prejudice, pursuant to Attachment B to the 1990 Settlement Agreement. 51 Attachment B stated, in pertinent part:

It is further understood and agreed that the litigation now pending in United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District v. Pulaski County Special School District No. 1, et al, No. LR-C-82-866 and cases consolidated therein and their predecessors (including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clark v. Board of Education of Little Rock School District (the “Litigation”) is to be dismissed with prejudice as to the LRSD and the former and current members of its board named in the Litigation.) This dismissal is final for all purposes except that the Court may retain jurisdiction to address issues regarding the implementation of the Plans.

Attachment B to the 1990 Settlement Agreement (docket no. 1174). In seeking that relief, LRSD acknowledged that the dismissal would not affect the district court’s jurisdiction to address issues regarding the implementation of its desegregation obligations or to conduct proceedings to enforce the terms of the Settlement Agreement or the terms of the Settlement Plans.

On March 11, 1996, the district court entered a Memorandum and Order (docket no. 2640) denying LRSD’s Motion for Order of Dismissal on the ground that:

The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been *1010 slow to implement many aspects of its agreements (although some improvements have been made). Therefore, the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and the agreement. Even had the LRSD acted in good faith throughout the years, the logistics and complexity of this case are such that this Court’s monitoring function would be impaired by entering an order of dismissal at this time.

LRSD appealed that decision to the Eighth Circuit.

On December 15, 1997, the Court reversed and remanded the case to the district court with instructions to enter an order dismissing the case with prejudice, as provided for under the terms of the 1990 Settlement Agreement. LRSD v. NLRSD, 131 F.3d 1255 (8th Cir.1997). In reaching this decision, the Court stated the following:

Although we can well understand the frustration the district court has experienced over the years in carrying out our instructions, we conclude that the District’s motion should have been granted. As we held in our 1992 decision, the terms of the settlement agreement became the law of the case. See Little Rock School District, 971 F.2d at 165. As the agreement specifically provides, the district court is permitted (and indeed must, in order to comply with our instructions), to retain jurisdiction to address issues regarding the implementation of the desegregation plans. Moreover, the desegregation plaintiffs may bring proceedings to enforce the terms of the settlement agreement and' the terms of the desegregation plans. In short, the entry of such an order would do nothing to relieve the three districts of their continuing obligation to honor their commitments as set forth in the settlement agreement and the plans.

Id. at 1257-58 (footnote omitted).

On January 26, 1998, the district court entered an Order (docket no. 3109) that dismissed this case and “cases consolidated herein, including, but not limited to, Cooper v. Aaron, Norwood v. Tucker, and Clark v. Board of Education of LRSD,” with prejudice, as to LRSD and “its current and former board members named in this litigation.” The district court also entered a Memo to the File (docket no. 3110) stating that, because the Plaintiff in this case was dismissed with prejudice, “the Clerk is instructed to administratively terminate this case,” but to “keep the case files open and in their current location in the Clerk’s office” so that the Court can continue to perform its ongoing duties regarding the supervision and implementation of the desegregation plans.

F. Joshua’s Request For An Interim Award Of Attorneys’ Fees For Performing Monitoring Activities After The 1990 Settlement

On November 22,1995, counsel for Joshua moved for an interim award of attorneys’ fees and costs in the amount of $805,611.81 for monitoring work performed after the Eighth Circuit approvéd the settlement of this case on December 12, 1990 (docket no. 2565). Counsel for Joshua later reduced the amount of this request-to $795,301.81 (docket no. 2791) and argued that it should be apportioned among the three Pulaski County school districts as follows: LRSD: 75% to 80%; NLRSD: 5% to 10%; and PCSSD: 15% to 20%— with the final percentages totaling 100% (docket no. 2792).

LRSD filed a Response and Supporting Memorandum of Law (docket nos. 2636 and 2637) challenging Joshua’s right to be awarded any attorneys’ fees or costs for *1011 post-settlement monitoring activities. LRSD argued that, as a part of the consideration for LRSD paying Joshua’s counsel $2,000,000 in attorneys’ fees in connection with the 1990 settlement, Joshua’s counsel had specifically agreed, on the record, that they would not seek future fees from LRSD for monitoring activities during the life of the settlement plans. In support of its position, LRSD relied upon the following colloquy between counsel and the Eighth Circuit appellate panel during oral argument in LRSD, 921 F.2d 1371 :

NORMAN CHACHKIN, ATTORNEY FOR JOSHUA INTERVENORS:

I just want to make one other observation and Mr. Heller can confirm this. Although it is not written into the settlement agreement we are happy to confirm it here and to be bound by it. The agreement between Little Rock and Joshua was that the fee payment from the Little Rock School District would also cover out of the court monitoring activities by the attorneys for Joshua during the life of the settlement plans so long as it wasn’t necessary to go back to court. If the settlement plans go forward as Mr. Walker suggested, the parties are committed to a monitoring system and committed to working together to ease any implementation problems and avoid any difficulties. That’s going to take attorney time. We have committed to Little Rock that we will not seek any fees from them for those activities unless it is necessary to go back to court for enforcement purposes and in that instance we’ll simply be free to make an application if we think we’re entitled to it.

JUDGE RICHARD S. ARNOLD:

Alright, thank you. Now, Mr. Heller, you are recognized.

CHRIS HELLER, ATTORNEY FOR LRSD:

s|« Hí ‡ # H* *

I’d like to confirm what Mr. Chachkin said about the agreement. Because of the responsibilities assigned to the Joshua Intervenors in our settlement plans, there is significant work for them to do over the next six or seven years, and our agreement on the fees did contemplate that there would [be] no further payment for that work.

(Emphasis added.)

In a Memorandum Opinion and Order (docket no. 2821) filed on September 23, 1996, Judge Wright concluded that LRSD and Joshua contractually agreed that the $2,000,000 in attorneys’ fees paid by LRSD in connection with the 1990 settlement also covered all monitoring activities performed by Joshua’s counsel during the life of the Settlement Plans. Therefore, Judge Wright ruled that Joshua’s counsel was not entitled to recover any attorneys’ fees from LRSD for performing monitoring activities.

On October 3, 1996, Joshua’s counsel filed a Motion for Reconsideration of Fee Petition (docket no. 2833) and supporting Memorandum of Law (docket no. 2834), in which he urged the district court to award attorneys’ fees under the “bad faith” exception to the general rule that, absent .a statute or enforceable contract, litigants must pay their own attorneys’ fees. On March 24, 1997, Judge Wright entered an Order (docket no. 2959) denying Joshua’s Motion for Reconsideration.

On April 22, 1997, counsel for Joshua filed a Notice of Appeal (docket no. 2966) of the district court’s March 24, 1997 Order denying his request for interim attorneys’ fees. I will return to discuss the final resolution of this issue later in this decision.

*1012 G. LRSD’s First Attempt To End Federal Court Jurisdiction

On May 17, 1996, LRSD filed a Motion to End Federal Court Jurisdiction (docket no. 2665) and supporting Brief (docket no. 2666). In these pleadings, LRSD argued that: (1) it was only required to implement its desegregation obligations under its Settlement Plan and the Interdistrict Settlement Plan for six years; (2) it had implemented the Settlement Plan, beginning with the 1990-91 school year, and “the six year term of the Plans will expire at the end of the 1995-96 school year”; and (3) “LRSD has implemented in good faith many desegregation plans for more than three decades. LRSD was a substantially unitary school district in 1982, but it nevertheless filed this interdistrict litigation in a good faith effort to maintain a biracial public school system in Little Rock. A recent and exhaustive audit of LRSD’s desegregation obligations shows that LRSD is in substantial compliance with the Plans.” Docket no. 2665.

On August 1, 1996, Joshua filed a Memorandum Opposing LRSD’s Motion to End Federal Court Jurisdiction (docket no. 2730) in which they challenged LRSD’s contention that the 1990 Settlement Plans called for a six-year implementation period. In support of their position, Joshua pointed out that no provision in any of the settlement documents limited LRSD’s implementation of its desegregation obligations to six years. Joshua also argued that LRSD had failed to discharge its burden of establishing “the requisite implementation of the court-approved settlement.”

On September 23, 1996, Judge Wright entered a Memorandum and Order (docket no. 2821) denying LRSD’s Motion to End Federal Court Jurisdiction on the grounds that: (1) the 1990 Settlement Agreement and Settlement Plans do not contain any provision that allowed LRSD to terminate “its duty to comply with the settlement plans after ... six years;” and (2) LRSD failed to provide sufficient evidence that it had “substantially complied” with its obligations under the Settlement Plans. The district court went on to urge LRSD and Joshua to modify “the parts of the plan that are ineffective or unworkable” so that LRSD could better position itself to argue that it is entitled to unitary status and relief from court supervision:

Instead of presenting substantial evidence of its compliance with its goals as set forth in the plan, the LRSD submits arguments that it has achieved unitary status because data from the LRSD compares favorably with data from districts which have been declared unitary. The Court would be inclined to agree with the LRSD with respect to many of these arguments if the LRSD were not contractually bound by the plan which it voluntarily adopted.

The Court has encouraged the parties to consider modifying those parts of the plan that are ineffective or unworkable. The Court has provided the parties with the testimony of experts to assist in the modification process. Instead, the LRSD has used the testimony of these experts to ask the Court to end Court jurisdiction without first proceeding with plan modifications. The Court cannot so easily relieve the district of its contractual obligations.

Once again the Court invites the parties to follow procedures to modify the parts of the plan that are ineffective or unworkable.

Docket no. 2821 at 12 (emphasis in original).

On December 6, 1996, LRSD filed a Motion for Approval of Plan Development Period (docket no. 2878) that requested Judge Wright: (1) to allow a six to nine month period for LRSD to concentrate its *1013 efforts to develop plan modifications to improve education and desegregation within the district; (2) to allow LRSD to use the ODM as a consultant to participate in the development of plan modifications in areas such as budget development, staff development, student assignments, and resolution of discipline issues; and (3) to withhold any further monitoring of the LRSD desegregation plan during this six to nine month period. In support of its Motion, LRSD noted that the Knight In-tervenors, PCSSD, and NLRSD supported its request.

On December 18, 1996, Joshua filed a Response (docket no. 2891) that did not oppose LRSD’s request for an interval of time to develop a new desegregation plan, but expressed reservations about ODM, “as an arm of the court,” participating in the negotiations between the parties. Joshua also urged Judge Wright to appoint additional monitors to work on a matter of particular concern to them — the alleged “ill-treatment of class members.”

On December 27, 1996, Judge Wright entered an Order (docket no. 2901) granting LRSD’s Motion. In this Order, Judge Wright held that: (1) LRSD “will benefit from a temporary hiatus from monitoring and from the expertise of the ODM, in order to develop proposed modifications to the LRSD desegregation plan”; and (2) ODM can advise LRSD and other parties during the negotiations for plan modifications and ODM can “participate in negotiations as a facilitator,” but “ODM cannot be a negotiator for any party.” Judge Wright also denied Joshua’s request to hire “additional monitors to handle complaints about mistreatment of class members.” December 27, 1996 Order at 3 (docket no. 2901).

H. The Perplexing Final Resolution Of Joshua’s Request For Still More Attorneys’ Fees From LRSD

On September 26, 1997, LRSD filed a Motion for Approval of Revised Desegregation and Education Plan (docket no. 3049) and a supporting Memorandum Briefidocket no. 3050). After Joshua objected to a number of provisions in the proposed revised plan, LRSD and Joshua engaged in extensive negotiations to develop a revised plan which both parties could support.

As part of these negotiations, LRSD and Joshua took up the still unresolved issue of Joshua’s request for $795,301 in attorneys’ fees for performing post-settlement monitoring activities, which was pending on appeal to the Eighth Circuit. 52 On January 21, 1998, LRSD and Joshua filed a Joint Motion for Approval of LRSD’s Revised Desegregation and Education Plan (docket no. 3107) in which they admitted that ongoing negotiations were taking place on the attorneys’ fees issue: “Joshua has agreed that they will request that the Court of Appeals for the Eighth Circuit hold their two pending appeals in abeyance, and LRSD and Joshua have further agreed that they will attempt to resolve Joshua’s past, present, and future claims for attorneys’ fees and. costs by mediation.” January 21, 1998 Joint Motion at 2 (docket no. 3107). See also Renewed Joint Motion for Approval of LRSD’s Revised Desegregation and Education Plan filed on March 23,1998 (docket no. 3136).

On February 27, 1998, the Eighth Circuit entered a Mandate (docket no. 3125) which granted “the stipulation of the parties for dismissal of the appeal” of Judge Wright’s March 24, 1997 Order denying Joshua’s request for interim attorneys’ *1014 fees. The entry of this voluntary Judgment dismissing Joshua’s appeal of the attorneys’ fees issue strongly suggests that, sometime prior to February 27, 1998, LRSD and Joshua arrived at a settlement of that issue.

In a letter agreement dated June 10, 1998, 53 LRSD and Joshua formally documented their settlement of all past and future claims for attorneys’ fees and costs as follows:

LRSD will make the following payments [to counsel for Joshua] for past fees and costs: $100,000.00 on or before June 30, 1998; $100,000.00 on or before August 31, 1998; and $500,000.00 on or before October 31, 1998. For fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan, LRSD will reimburse your firm up to $4.8,333.33 per year for three years beginning July 1, 1998.

The payments described in this letter will constitute full and complete payment in satisfaction of all past or future claims for attorney’s fees and costs except as specifically set forth in the Revised Desegregation and Education Plan.

June 10, 1998 letter agreement, attached as Exhibit 7 to LRSD’s Memorandum Brief in Support of Motion for an Immediate Declaration of Unitary Status (docket no. 3581) (emphasis added). 54

Although not directly relevant to the issue of unitary status, I can think of no good explanation for LRSD’s decision to voluntarily pay Joshua’s counsel an additional $700,000 in attorneys’ fees for performing monitoring work for which Judge Wright had ruled he was not entitled to be paid anything from LRSD. On top of this, one of Joshua’s own attorneys, Mr. Chaeh-kin, previously had admitted during oral argument before the Eighth Circuit that the attorneys’ fees paid under the 1990 Settlement Agreement included future attorneys’ time expended in connection with monitoring activities. 55 It appears to me that Judge Wright’s well-reasoned Memorandum Opinion (docket no. 2821) denying *1015 Joshua’s Request for an Interim Award of Attorneys’ Fees and her subsequent Order (docket no. 2959) denying Joshua’s Motion for Reconsideration placed LRSD in an excellent position to •prevail on Joshua’s appeal of the district court’s rulings to the Eighth Circuit. Holding what seemed to be the winning hand on appeal, I find it passing strange that LRSD would voluntarily agree to pay Joshua’s counsel an additional $700,000 for post-settlement monitoring work when, as stated above, one of Joshua’s other attorneys admitted this work was already included in the $2,000,000 LRSD paid to Joshua’s counsel under the 1990 Settlement Agreement.

I find it somewhat discomforting that LRSD and Joshua had a meeting of the minds on an essentially new desegregation settlement plan at the same time their attorneys were discussing the settlement of Joshua’s counsel’s request for a large interim award of attorneys’ fees. However, I know of no facts establishing that the simultaneous negotiation of those two unrelated issues did not take place at arms length or involved a quid pro quo.

From the inception of this case, Joshua’s counsel has fought hard for his clients and has a well-documented record of zealously protecting their interests. I also recognize that Joshua’s counsel has manned the barricades of civil rights litigation in Arkansas for over four decades and that he has a reputation for never yielding on matters of principle. Accordingly, while I do not conclude that anything improper occurred in the simultaneous negotiation of these two unrelated issues, I do have a real concern about the public’s perception of the timing of these events — which I fear has raised troubling questions and lingering doubts.

I also find it unsettling that, going forward, LRSD agreed to pay Joshua’s counsel “upto 48,333.33 per year for three years beginning July 1, 1998,” for “fees and costs incurred for implementing and monitoring the Revised Desegregation and Education Plan.” June 10, 1998 letter agreement, attached as Exhibit 7 to docket no. 3581. At a minimum, all of the terms and conditions of such an unusual arrangement should have been spelled out in writing, with a clear statement regarding the duties, if any, that Joshua’s counsel owed to LRSD, the party paying his fees for monitoring the implementation of the Revised Plan, and whether, under this arrangement LRSD and Joshua’s counsel entered into an attorney-client relationship. In any case, at least one thing is clear from the June 10, 1998 letter agreement: In exchange for being paid $4,027.78 per month by LRSD, Joshua’s counsel specifically agreed to undertake the obligation of monitoring all aspects of LRSD’s implementation of the Revised Plan.

Subsequently, Joshua’s counsel submitted to LRSD periodic “Statements for Legal Services Rendered” for attorneys’ fees incurred in connection with his work “implementing and monitoring” the Revised Plan. 56 See Exhibit 8 to docket no. 3581. According to Joshua’s counsel’s periodic statements for legal services, LRSD paid him a total of $124,861.15, which was billed in the following installments: July, 1998, through October, 1998: $16,111.12; November, 1998, through October, 1999: $48,333.33; November, 1999: $4,027.78; December 1999: $4,027.78; January, 2000, through May, 2000: $20,138.90; June, 2000: $4,027.78; July 2000: $4,027.78; August, 2000, through September, 2000: $8,055.56; October, 2000: $4,027.78; No *1016 vember, 2000: $4,027.78; December, 2000: $4,027.78; and January, 2001: $4,027.78. See Exhibit 8 to docket no. 3581. 57 Thus, for each month between July, 1998, and January, 2001, LRSD paid Joshua’s counsel $4,027.78 for attorneys’ fees incurred “monitoring” LRSD’s implementation of the Revised Plan.

For good reason, there is a widespread public perception that this case has become a decades-old cottage industry — and a large one at that — for lawyers. Over ten years ago, in Judge Woods’ decision to step down from this case, he decried “the many appeals perfected in this case, some of which have accomplished nothing but enrichment of the participating attorneys,” and called the lawyer fees paid by the three districts “grossly exorbitant.” LRSD, 740 F.Supp? at 635. Since that time, things appear to have changed little, with all three school districts paying substantial annual attorneys’ fees to their own lawyers and substantial annual payments to the ODM, whose requested annual budget for the last several years has been in the range of $700,000. At the same time, the threat of paying large future attorneys’ fees to Joshua’s counsel hangs like the sword of Damocles above the heads of all the parties. 58

*1017 All members of the professional group, who have directly benefitted from the perpetuation of this case, are placed on notice that I intend to monitor closely the costs associated with this action. Being born and raised in Scott County, one of the poorest counties in Arkansas, I understand the meaning of being careful with a dollar, and I expect the professional group to keep that important point fixed in their minds from here on out.

I. Final Approval Of Revised Desegregation And Education Plan

On April 10, 1998, Judge Wright entered a Memorandum Opinion and Order (docket no. 3144) approving the Revised Plan. Importantly, Judge Wright held that the Revised Plan constituted a “new consent decree or settlement agreement” between LRSD and Joshua:

The LRSD and Joshua have agreed that, if approved, the proposed Plan:

shall supersede and extinguish all prior agreements and orders in the Little Rock School District v. Pulaski County Special School District, U.S.D.C. No. LR-C-82-866, and all consolidated cases related to the desegregation of the Little Rock School District (“LRSD”) with the following exceptions:

a.The Pulaski County School Desegregation Case Settlement Agreement as revised on September 28, 1989 (“Settlement Agreement”);

b. The Magnet School Stipulation dated February 27,1987;

c. Order dated September 3, 1986, pertaining to the Magnet Review Committee;

d. The M-to-M Stipulation dated August 26, 1986; and,

e. Orders of the district court and court of appeals interpreting and enforcing sections a. through d. above to the extent not inconsistent with this Revised Plan.

Based upon this provision, this Court considers the LRSD Proposed Revised Plan an entirely new consent decree or settlement agreement between the LRSD and Joshua.

April 10, 1998 Memorandum Opinion and Order at 3 (docket no. 3144) (emphasis added).

Alternatively, Judge Wright concluded that, even if the Court considered the Revised Plan as a modification to the 1990 Settlement Plan, 59 she would still approve the Revised Plan because the parties had satisfied the standard for modifying a consent decree established by the Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393 , 112 S.Ct. 748 , 116 L.Ed.2d 867 (1992), and LRSD, 56 F.3d at 914. In reaching this conclusion, Judge Wright noted that LRSD had implemented certain aspects of the 1990 Settlement Plan so successfully that the district court had withdrawn supervision over those ar *1018 eas. 60 However, the court also recognized that some goals in the 1990 Settlement Plan “[were] out of date for the current situation that exists in the LRSD and other specific, rigid goals in the 1990 Plan ... may never be met, regardless of the amount of effort and good faith put forth by the LRSD.” April 10, 1998 Memorandum Opinion and Order at 6 (docket no. 3144) (footnotes omitted). One such group of potentially unreachable goals cited by Judge Wright were the “goals in the 1990 Plan regarding achievement disparities [which] may never be met regardless of the effort put forth by LRSD.” Id. See Testimony of Dr. Herbert J. Walberg at 17-25 (docket no. 2692); Testimony of Dr. David J. Armor at 18-39 (docket no. 2693); and Testimony of Dr. Gary Orfield at 25-31 (docket no. 2768).

J. LRSD’s Implementation Of Its Obligations Under The Revised Plan

Between April 10, 1998, and March 15, 2001, the date LRSD filed its Request for Scheduling Order and Compliance Report seeking unitary status, LRSD and Joshua filed no substantive pleadings addressing any problems arising from LRSD’s implementation of its obligations under the Revised Plan. In fact, only three documents dealing with LRSD’s implementation of the Revised Plan were filed during that period of time.

First, on August 11, 1999, the ODM filed a lengthy Report (docket no. 3289) on LRSD’s preparations for implementation of the Revised Plan. This Report reviewed the status of LRSD’s implementation of all aspects of the Revised Plan, including the following areas that have special relevance to Joshua’s opposition to LRSD’s pending request for unitary status: Extracurricular Enrichment Activities (pp. 12-16); Learning Environment (pp. 20-22); Mathematics (pp. 27-31); Program Assessment (pp. 42-43); Reading and Language Arts (pp. 44-48); Remediation (pp. 49-52); and Student Discipline (pp. 67-71). The ODM’s “Summary and Conclusions” that followed each section of the Report indicated that, overall, LRSD was doing a satisfactory job of implementing the Revised Plan.

Second, on April 18, 2000, LRSD filed a 129-page Interim Compliance Report (docket no. 3356 dated March 15, 2000). Although LRSD was not obliged to file this Report, it voluntarily did so for two stated reasons: (1) “to help the District assess its progress toward full compliance and to reassure the court, the parties, and the community of the District’s good faith efforts to be in total compliance with the Revised Plan”; and (2) “[t]he District hopes to receive comments and suggestions from interested persons as to the District’s compliance with the Revised Plan and the format and content of this status report.” Interim Compliance Report at 1 (docket no. 3356). The Interim Compliance Report set forth in detail all of the programs, policies, and procedures that LRSD was implementing in accordance with its obligations under the Revised Plan.

The ODM did not file any comments or objections to anything contained in LRSD’s Interim Compliance Report. Likewise, nothing contained in that Report caused Joshua’s counsel, who was being paid $4,027.78 per month by LRSD to monitor its implementation of the Revised Plan, to raise any compliance issues. Fi *1019 nally, no “interested party” raised any questions concerning whether, based on the programs, policies, and procedures described in the Interim Compliance Report, LRSD was in substantial compliance with its obligations under the Revised Plan. This silence, it seems to me, speaks rather eloquently.

Third, on June 14, 2000, the ODM filed a 127-page Report of Disciplinary Sanctions in the LRSD (docket no. 3366). 61 The introduction to this Report contained a broad disclaimer of what was not being evaluated:

This document neither evaluates the district’s discipline policies and procedures nor determines how the policies are followed at various schools. Moreover, the report does not measure the effectiveness of any program, training or practices the district may have instituted to address the need for all students to be disciplined fairly and equitably, regardless of their race or sex. While the disciplinary procedures are represented by the data are legitimate and important areas of inquiry, we have not examined them here. We do provide some additional information to explain the district’s general approach to discipline and to set the context for our findings, but our report focuses on the LRSD’s own records and what they reflect.

Report of Disciplinary Sanctions at 1 (docket no. 3366). 62 Furthermore, because LRSD maintained disciplinary records on only “suspensions and expulsions,” the Report was limited to an examination of LRSD’s raw data, broken down by race and sex, for students who were suspended or expelled from each elementary school, junior high school, and high school during six school years, 1993-94 through 1998-99.

While the data compiled in the Report revealed that a disproportionate number of African-American male students were suspended or expelled at many schools, the lack of specific facts surrounding each suspension and expulsion (e.g., a description of the conduct giving rise to the disciplinary sanction, race of teacher or administrator issuing disciplinary sanction, socioeconomic background of student, etc.) made it impossible to determine, without speculation, the reason for this disparity. 63 Additionally, because LRSD administrators assigned many of the suspended or expelled students to alternative education programs 64 but failed to maintain records documenting which suspended and expelled students were sent to those programs, it was impossible to determine from the Report how *1020 many days of school each of the suspended and expelled students actually missed. Finally, because the Report did not include any data for the 1999-00 school year, it was impossible to determine if converting LRSD’s junior high schools to middle schools improved behavior problems and reduced the number of suspensions and expulsions. However, the Report made it clear that this change could affect future data:

Beginning with the 1999-2000 school year, the district made a fundamental commitment to improving students’ performance, both academically and behaviorally, by converting to a middle school system (grades 6-8). Studies have shown that the grade 6-8 configuration is developmentally appropriate. The teaming practiced in middle schools is to provide a nurturing environment in which students can learn and also find help with the physical and emotional changes they are experiencing. Because the discipline data for 1999-2000 were not available at the time we prepared this report, we could not assess whether discipline and sanctions have changed in ways that might be attributable to the middle school approach.

Report at 126.

In the Report’s “Conclusions,” the ODM made two primary criticisms of LRSD’s disciplinary practices: (1) it had not maintained and compiled “comprehensive data on all the discipline sanctions [which] may leave some problems uncovered, as well as thwart assessment of the extent to which the district is preventing racial discrimination in disciplinary actions overall”; and (2) “[w]hile the report data do not reflect overall serious behavior problems in LRSD, African-American males are being disciplined in disproportionately high numbers.” Report at 125. The ODM also offered seven “ideas ... as suggestions for improving disciplinary procedures for all students in LRSD, while also reducing the over-representation of black students in disciplinary actions.” Report at 127.

K. LRSD Seeks Unitary Status Based Upon Its Substantial Compliance With The Revised Plan

On March 15, 2001, LRSD filed a Request for Scheduling Order and Compliance Report (docket no. 3410) and requested the court to declare it “unitary with respect to all aspects of school operations.” On June 25, 2001, Joshua filed their Opposition to LRSD’s Compliance Report (docket no. 3447) in which they argued LRSD was not entitled to unitary status under the Revised Plan.

On March 15, 2002, LRSD filed the pending Motion for an Immediate Declaration of Unitary Status (docket no. 3580) and Supporting Memorandum Brief (docket no. 3581). On May 30, 2002, Joshua filed their Response in Opposition to LRSD’s Motion for Immediate Declaration of Unitary Status (docket no. 3604). On June 7, 2002, LRSD filed its Reply Brief (docket no. 3607).

As indicated previously, under § 11 of the Revised Plan, LRSD was entitled to the entry of an order declaring it unitary if no party challenged its substantial compliance with the Revised Plan. Because Joshua chose to challenge LRSD’s “substantial compliance,” § 11 of the Revised Plan imposed on them the burden of proof on that issue. Joshua’s counsel has acknowledged that the Revised Plan imposed on his clients the burden of proving that, as of March 15, 2001, 65 LRSD was not in sub *1021 stantial compliance with its obligations under the Revised Plan. See Transcript of Proceedings on June 29, 2001, at 26 (docket no. 3461), and Transcript of Proceedings on July 9, 2001, at 26 (docket no. 3464).

III. Relevant Provisions Of Revised Plan

In Joshua’s Opposition to LRSD’s Compliance Report (docket no. 3447), they include a “Seriatim Response to District’s March 15, 2001 Compliance Report” in which they list compliance problems or concerns with the following sections of the Revised Plan: § 2.1 (LRSD’s obligation of good faith); §§ 2.1.1, 2.2, 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, and 2.2.7 (LRSD’s obligations regarding faculty and staff); § 2.3 (LRSD’s obligations regarding student assignment); § 2.4 (LRSD’s obligations regarding special education and related programs); §§ 2.5, 2.5.1, 2.5.2, 2.5.3, and 2.5.4 (LRSD’s obligations regarding student discipline); §§ 2.6, 2.6.1, 2.6.2, and 2.11.1 (LRSD’s obligations regarding extracurricular activities, advanced placement courses, and guidance counseling); § 2.7 and § 5 (LRSD’s obligations regarding improving African-American academic achievement); § 2.8 (parental involvement); and § 3.6 (school construction and closing).

Importantly, Joshua’s Opposition to LRSD’s Compliance Report was careful to note that their concerns regarding LRSD’s compliance with faculty and staff, student assignment, special education and related programs, parental involvement, and school construction and closing were based primarily on “information and belief’ or involved “generalized suspicions” regarding LRSD’s future actions. After filing that Opposition, Joshua conducted considerable discovery to develop the facts to support their challenges to LRSD’s request for unitary status.

As indicated previously, before beginning the evidentiary hearings on Joshua’s Opposition to LRSD’s request for unitary status, Judge Wright instructed Joshua’s counsel to present his argument beginning with his strongest first and proceeding to his weakest (docket no. 3461 at 54-55). During a hearing on July 9, 2001, which took place after the completion of the first two days of testimony on July 5 and 6, 2001, Joshua’s counsel stated that LRSD’s three most serious areas of noncompliance under the Revised Plan were its failure to meet its obligations regarding: (1) good faith; (2) improvement of academic achievement for African-American students; 66 and (3) improvement of the racial disparity in student discipline (docket no. 3464 at 26-29). During the evidentiary hearings on August 1 and 2, 2001, Joshua completed calling all of their witnesses on the issues of LRSD’s alleged substantial noncompliance with those three areas of *1022 the Revised Plan. At the beginning of the fifth day of evidentiary hearings on November 19, 2001, Judge Wright noted, on the record, that counsel for Joshua had “rested his case” on the first three areas of LRSD’s alleged noncompliance (docket no. 3558 at 14-15). After Judge Wright denied LRSD’s Motion for Directed Verdict, it presented its case on November 19 and 20 (docket nos. 3558 and 3559).

On December 11, 2001, Judge Wright conducted a hearing to schedule the remaining days of evidentiary hearings on Joshua’s Opposition to LRSD’s request for unitary status (docket no. 3560). During this hearing, Judge Wright agreed to allow Joshua and LRSD no more than five days to present additional testimony on what Joshua’s counsel identified as the last three areas of LRSD’s alleged noncompliance with the Revised Plan: (1) advanced placement courses; (2) extracurricular activities; and (3) guidance counseling. Judge Wright also agreed to allow Joshua to present non-cumulative testimony regarding: LRSD’s alleged failure to comply with its overall obligation of good faith regarding its implementation of programs, policies, and procedures regarding advanced placement courses, extracurricular activities, and guidance counseling; and how LRSD’s programs, policies, and procedures governing advanced placement courses, extracumcular activities, and guidance counseling had adversely affected the academic achievement of African-American students.

I conducted the final three days of evi-dentiary hearings on those issues, beginning on July 22, 2002. At no point during those hearings, or during the six previous days of evidentiary hearings, did Joshua present any evidence or arguments to support the contentions in their Opposition to LRSD’s Compliance Report (docket no. 3447) that LRSD was not in substantial compliance with its obligations regarding faculty and staff (§§ 2.1.1, 2.2-2.2.5, and 2.2.7); student assignment (§ 2.3); special education and related programs (§ 2.4); parental involvement (§ 2.8); and school construction and closing (§ 3.6). Joshua’s failure to present any evidence to support their contention regarding LRSD’s alleged failure to substantially comply with those sections of the Revised Plan requires a finding that they have abandoned those arguments. In any case, Joshua clearly failed to maintain their burden of proving that LRSD failed to substantially comply with any of those particular sections of the Revised Plan.

Thus, the determination of LRSD’s request for unitary status turns on whether Joshua has maintained their burden of proving by a preponderance of the evidence that LRSD has failed to substantially comply with the following obligations imposed on it under the Revised Plan: (1) good faith as set forth in § 2.1; (2) student discipline as set forth in §§ 2.5 through 2.5.4 and 2.12.2; (3) academic achievement of African-American students as set forth in §§ 2.7, 2.7.1, 5.1 through 5.8, and 2.12.2; (4) extracurricular activities as set forth in §§ 2.6, 2.6.3, and 2.12.2; (5) advanced placement courses as set forth in §§ 2.6, 2.6.2, and 2.12.2; and (6) guidance counseling as set forth in § 2.11.1. The provisions of the Revised Plan containing LRSD’s obligations in these six disputed areas, along with other provisions of the Revised Plan that are relevant to the resolution of the issue of unitary status, are summarized below.

A. LRSD’s Obligation Of Good Faith

The first obligation imposed on LRSD was to act in “good faith.” Because of the importance of this obligation to the question of unitary status, § 2.1 of the Revised Plan ought, in fairness, to be quoted in its entirety:

*1023 LRSD shall in good faith exercise its best efforts to comply with the Constitution, to remedy the effects of past discrimination by LRSD against African-American students, to ensure that no person is discriminated against on the basis of race, color or ethnicity in the operation of LRSD and to provide an equal educational opportunity for all students attending LRSD schools.

B. LRSD’s Obligations Regarding Student Discipline

Sections 2.5 through 2.5.4 set forth LRSD’s obligations regarding student discipline. Section 2.5 obligated LRSD to implement programs, policies, and/or procedures “designed to ensure that there is no racial discrimination with regard to discipline.” Section 2.5.1 required LRSD to “strictly adhere to the policies set forth in the Student Rights and Responsibilities Handbook to ensure that all students are disciplined in a fair and equitable manner,” and § 2.5.2 required LRSD to “purge students discipline records after the fifth and eighth grades of all offenses, except weapons offenses, arson and robbery.” Section 2.5.3 established the position of “ombudsman,” who was responsible for “acting as an advocate on behalf of students involved in the discipline process, investigating parent and student complaints of race-based mistreatment and attempting to achieve equitable solutions.” Finally, § 2.5.4 obligated LRSD to “work with students and their parents to develop behavior modification plans for students who exhibit frequent misbehavior.”

C. LRSD’s Obligations To Improve And Remediate The Academic Achievement Of African-American Students

Section 2.7 contained LRSD’s core obligation regarding the academic achievement of African-American students:

LRSD shall implement programs, policies and/or procedures designed to improve and remediate the academic achievement of African-American students, including but not limited to Section 5 of this Revised Plan.

Very significantly, nowhere in this section or any other section of the Revised Plan does LRSD assume any obligation to narrow or close the academic achievement gap between white students and African-American students.

In order to determine the effectiveness of LRSD’s academic programs designed to improve African-American achievement, Section 2.7.1 obligated LRSD to “assess the academic programs implemented pursuant to Section 2.7 after each year.” If the results of those assessments “[reveal] that a program has not and likely will not improve African-American achievement, LRSD shall take appropriate action in the form of either modifying how the program is implemented or replacing the program.”

D.LRSD’s Obligations Regarding Extracurricular Activities, Advanced Placement Courses, And Guidance Counselors

Section 2.6 required LRSD to “implement programs, policies and/or procedures designed to promote participation and to ensure that there are no barriers to participation by qualified African-Americans in extracurricular activities, advanced placement courses, honors and enriched courses and the gifted and talented program.” Section 2.6.1 and 2.11.1 required LRSD to implement training programs to assist teachers and counselors in “identifying and encouraging African-American students to participate in honors and enriched courses and advanced placement courses” and required guidance counselors to “work with students in an effort to provide more equity in academic honors, awards, and schol *1024 arships.” Section 2.6.2 obligated LRSD to “implement programs to assist African-American students in being successful in honors and enriched courses and advanced placement courses.”

E. LRSD’s Obligations To Develop Remedies, Where Appropriate, For Racial Disparities In Programs And Activities

Section 2.12.2 provided that “LRSD shall implement policies and procedures for investigating the causes of racial disparities in programs and activities and developing remedies where appropriate.” Joshua made no mention of LRSD’s alleged failure to substantially comply with Section 2.12.2 in their June 25, 2001 Opposition to LRSD’s Compliance Report (docket no. 3447). However, nearly a year later, in their May 30, 2002 Opposition to LRSD’s Motion for an Immediate Declaration of Unitary Status (docket no. 3604), Joshua argued for the first time that this section of the Revised Plan obligated LRSD: (1) to develop remedies for the racial disparity in student discipline under Section 2.5 (docket no. 3604 at 17, paragraph (26)); and (2) to “devise a remedy” directed at decreasing “the racial gap in achievement” (docket no. 3604 at 36, paragraph (58)). In LRSD’s Reply Brief in Support of Motion for Immediate Declaration of Unitary Status (docket no. 3607 at 1-3), it raised a host of arguments against allowing Joshua to apply § 2.12.2 to its obligations regarding student discipline and academic achievement. I will address and resolve those arguments, infra, in my Findings of Fact and Conclusions of Law.

F. Procedure For Raising Compliance Issues

Section 8.2 sets forth a detailed procedure for “Raising Compliance Issues” which a party was required to follow as a prerequisite to “requesting the district court to exercise jurisdiction with regard to a compliance issue.” First, a party raising a compliance issue was required to provide the “LRSD superintendent or his designee” with timely written notice of the specifics surrounding the alleged noncompliance so that LRSD could conduct a “reasonable investigation” and provide the complaining party with a “written response within a reasonable amount of time not to exceed fifteen days from receipt of the written notice” (§§ 8.2.1 through 8.2.3). Second, if the complaining party was not satisfied with LRSD’s written response, the party “shall ... submit the compliance issue to ODM ... for facilitation of an agreement between the parties.” Only if the dispute “remains unresolved after good faith attempts at facilitation by ODM” could the complaining party “seek resolution of the issue before the district court” (§§ 8.2.4 and 8.2.5). Finally, § 8.3 of the Revised Plan provides the following:

Before the end of the transition period, LRSD shall develop and/or identify the programs, policies and/or procedures to be implemented in accordance with this Revised Plan and provide them to Joshua. Joshua shall have a right to invoke the process described in Section 8.2 if LRSD fails to adopt programs, policies and/or procedures required by this Revised Plan; adopts facially deficient programs, policies and/or procedures; or, fails to implement the programs, policies and/or procedures adopted in accordance with this Revised Plan.

As indicated previously, in LRSD’s Interim Compliance Report (docket no. 3356), filed almost a full year before its March 15, 2001 Compliance Report, LRSD explicitly sought “comments and suggestions from interested persons as to the District’s compliance with the Revised Plan and the format and content of this status report.” Interim Compliance Report at 1. Importantly, under the June 10, 1998 letter agreement between LRSD and *1025 Joshua, counsel for Joshua expressly assumed responsibility for monitoring the implementation of LRSD’s obligations under the Revised Plan “for three years beginning July 1, 1998,” in exchange for being paid attorneys’ fees of $4,027.77 per month by LRSD. The record is undisputed that Joshua’s counsel never raised any compliance issues under § 8.2 of the Revised Plan. The record is also undisputed that the first time Joshua raised any of the specific compliance issues now before the court was when they filed their Opposition to LRSD’s Compliance Report (docket no. 3447) on June 25, 2001. Thus, Joshua’s counsel unquestionably failed to comply with the obligation he agreed to undertake — at considerable expense to LRSD— to faithfully monitor the implementation of the Revised Plan and to call to LRSD’s attention, in a timely fashion, any compliance problems.

G.Duration Of Revised Plan

The term of the Revised Plan was three school years, beginning with the 1998-99 school year and ending on the last day of classes of the 2000-01 school year (§ 9). The 1997-98 school year and the first semester of the 1998-99 school year was defined as a “transition period,” during which LRSD was to operate under the May 1992 Desegregation Plan and Inter-district Plan (docket no. 1587) to the extent they were not inconsistent with the Revised Plan. The ODM was to devote all of its time during the transition period to monitoring “LRSD’s preparation for implementation of this Revised Plan and act[ing] as a resource for LRSD in that process” (§ 10). Thus, LRSD began operating under the Revised Plan during the spring semester of the 1998-99 school year.

H. Procedure For Seeking Unitary Status

As indicated previously, § 11 required the district court, at the conclusion of the 2000-01 school year, to issue an order “releasing LRSD from court supervision and finding LRSD unitary with regard to all aspects of school operations provided that LRSD was in substantial compliance with its obligations set forth in this Revised Plan.” LRSD was required to file a Report on March 15, 2001, “indicating the state of LRSD’s compliance with the Revised Plan.” Thereafter, any party “challenging LRSD’s compliance [bore] the burden of proof’ and, if no challenges were forthcoming, the district court would be required to enter an order granting unitary status “without further proceedings” (§ ID-

I. Effect Of LRSD’s Failure To Meet “Specific Goals” In The Revised Plan

In footnote 2 of the Revised Plan, LRSD and Joshua agreed that, by identifying “specific goals in this Revised Plan,” it was not the intention of the parties “to create an obligation that LRSD shall have fully met the goal by the end of the plan’s term.” This footnote also provides that “LRSD’s failure to obtain any of the goals of this Revised Plan will not be considered a failure to comply with the plan if LRSD followed the strategies described in the plan and the policies, practices and procedures developed in accordance with the plan.” The need for the inclusion of this footnote appears to have flowed, in part, from the district court having previously construed “goals” stated in LRSD’s 1990 Settlement Plan to be binding “obligations” that had to be met before LRSD could achieve unitary status. 67

*1026 IV. Controlling Principles Of Law

A. The Evolving Concept of Unitary Status

In Green, 391 U.S. at 437-38 , 88 S.Ct. 1689 , the Court held that school boards “operating state-compelled dual systems were ... clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” According to the Court, a school district has achieved “unitary status” when it is devoid of racial discrimination with regard to: (1) student assignment; (2) faculty and staff; (3) transportation; (4) extracurricular activities; and (5) facilities. Id. at 435 , 88 S.Ct. 1689 Thus, disparities in these five areas of a school district’s operations are per se vestiges of de jur segregation, which must be “disestablished” before a school district can become unitary. For the next two decades, the Green factors became the litmus test used by federal courts to determine if a school district had achieved unitary status.

In Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 , 111 S.Ct. 630 , 112 L.Ed.2d 715 (1991), the Court expanded the framework for deciding if a school district had achieved unitary status. The Court began by noting the split among the circuits regarding the meaning of “unitary,” with some lower courts interpreting that term to mean a school district which had met the mandates of Green, 68 and others construing it to describe any school district that had a desegregated student assignment plan, without regard to whether it was the result of a court-imposed desegregation order. 69 Dowell at 245, 111 S.Ct. 630 . The Court ended this battle over semantics by noting that:

[I]t is a mistake to treat words such as “dual” and “unitary” as if they were actually found in the Constitution. The constitutional command of the Fourteenth Amendment is that “[n]o State shall ... deny to any person ... the equal protection of the laws.” Courts have used the term “dual” to denote a school system which has engaged in intentional segregation of students by race, and “unitary” to describe a school system which has been brought into compliance with the command of the Constitution. We are not sure how useful it is to define these terms more precisely, or to create subclasses within them.

Id. at 245-46 , 111 S.Ct. 630 .

Relying on United States v. Swift & Co., 286 U.S. 106 , 52 S.Ct. 460 , 76 L.Ed. 999 (1932), the Tenth Circuit in Dowell had held that a desegregation decree could not be lifted or modified absent a “grievous wrong evoked by new and unforeseen conditions.” Id. at 240 , 111 S.Ct. 630 (quoting Dowell, 890 F.2d at 1490). The Court, in finding the Tenth Circuit’s reliance on Swift to be misplaced, emphasized the important distinction between a consent decree in an antitrust case, which by its terms remained effective “in perpetuity,” and a consent decree entered in a school desegregation case:

From the very first, federal supervision of local school systems was intend *1027 ed as a temporary measure to remedy past discrimination.

:¡; í¡í * * ❖ *

Local control over the education of children allows citizens to participate in decisionmaking, and allows innovation so that school programs can fit local needs. [Citations omitted.] The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that “necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination. See Milliken v. Bradley [Milliken II], 433 U.S. [267] at 280-82[, 97 S.Ct. 2749 , 53 L.Ed.2d 745 (1977)].” Spangler v. Pasadena City Bd. of Education, 611 F.2d at 1245 n. 5 (Kennedy, J., concurring).

Id. at 247-48, 52 S.Ct. 460 .

In reversing and remanding the case for a determination of whether the desegregation consent decree should be terminated, the Court provided the district court with the following guidance:

The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it ivas entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable.

In considering whether the vestiges of de jure segregation had been eliminated as far as practicable, the District Court should look not only at student assignments, but “to every facet of school operations-faculty, staff, transportation, extra-curricular activities and facilities.” Green, 391 U.S. at 435 , 88 S.Ct. 1689 . See also Swann, 402 U.S. at 18, 91 S.Ct. 1267 (“[E]xisting policy and practice with regard to faculty, staff, transportation, extra-curricular activities, and facilities” are “among the most important indicia of a segregated system”).

Id. at 249-50, 52 S.Ct. 460 (emphasis added). Thus, the Court made it clear that, in addition to a careful analysis of the Green factors, a district court must determine whether the school district has complied in good faith with the desegregation decree.

In Freeman v. Pitts, 503 U.S. 467 , 112 S.Ct. 1430 , 118 L.Ed.2d 108 (1992), the Court held that a district court may relinquish its supervision and control over those aspects of a school system in which there has been compliance with a desegregation decree even if other aspects of the system remain in noncompliance and require continued federal supervision. The Court explained the rationale for its holding as follows:

Partial relinquishment of judicial control, where justified by the facts of the case, can be an important and significant step in fulfilling the district court’s duty to return the operations and control of schools to local authorities. In Dowell , we emphasized that federal judicial supervision of local school systems was intended as a “temporary measure.” 498 U.S. at 247 , 111 S.Ct. 630 . Although this temporary measure has lasted decades, the ultimate objective has not changed-to return school districts to the control of local authorities. Just as a court has the obligation at the outset of a desegregation decree to structure a plan so that all available resources of the court are directed to comprehensive supervision of its decree, so too must a court provide an orderly means for withdrawing from control when it is shown that the school district has attained the requisite degree of compliance. A tran *1028 sition phase in which control is relinquished in a gradual way is an appropriate means to this end.

-Id. at 489-90, 112 S.Ct. 1430 . The Court also noted that “the Green factors need not be a rigid framework” and that the partial relinquishment of judicial supervision is consistent with the district court’s exercise of its “equitable discretion”:

By withdrawing control over areas when judicial supervision is no longer needed, a district court can concentrate both its own resources and those of the school district on the areas when the effects of de jure discrimination have not been eliminated and further action is necessary in order to provide real and tangible relief to minority students.

Id. at 493 , 112 S.Ct. 1430 .

In deciding the question of unitary status, the district court in Freeman had considered not only the Green factors, but also an additional factor: the quality of education being offered to white and black students, with specific emphasis on programs designed to improve the academic achievement of black students. Id. at 482-83 , 112 S.Ct. 1430 . The Court, in affirming the district court’s consideration of this additional factor, stated the following:

It was an appropriate exercise of its discretion for the District Court to address the elements of a unitary system discussed in Green , to inquire whether other elements ought to be identified, and to determine whether minority students were being disadvantaged in ways that required the formulation of new and further remedies to ensure full compliance with the court’s decree.

Id. at 492 , 112 S.Ct. 1430 . Thus, the Court recognized that the Green factors are not the only disparities which may be classified as vestiges of de jure segregation. Depending on the circumstances of a particular case, the trial court may exercise its discretion to consider other factors, as long as it makes clear findings which establish the causal link between each such additional factor and the prior system of de jure segregation.

Finally, the Court set forth the following guidelines, which should be followed in deciding whether the incremental withdrawal of federal supervision is appropriate:

Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.

In considering these factors, a court should give particular attention to the school system’s record of compliance. A school system is better positioned to demonstrate its good-faith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations.

Id. at 491 , 112 S.Ct. 1430 . 70 Thus, the Court concluded that the district court’s *1029 ultimate inquiry must be whether the constitutional violator has complied in good faith with the desegregation decree since it was entered, and whether the vestiges of de jure segregation have been eliminated to the extent practicable. Id. at 492, 112 S.Ct. 1430 .

In moving the test for unitary status away from the unqualified Green standard that charged a school district with the “affirmative duty to eliminate racial discrimination root and branch” to the more easily achievable standard of eliminating the vestiges of de jure segregation “to the extent practicable,” the Court in Freeman appeared to recognize two important points. First, because racism still remains a most regrettable part of the nation’s social fabric, no amount of federal supervision of a school district can eliminate racial discrimination. 71 Second, in qualifying a school district’s duty to eliminate the vestiges of past discrimination “to the extent practicable,” the Court strongly implied that the duration of federal supervision over a school district should have some reasonable limit.

In Hull v. Quitman County Board of Education, 1 F.3d 1450, 1454 (5th Cir. 1993), the Court made the following observation regarding the importance of the Court’s decisions in Freeman and Dowell :

This court used to evaluate termination of desegregation decrees under the global inquiry whether the school district had achieved “unitary” status. Freeman and Dowell make clear, however, that there is no longer magic in the phrase unitary status, which had spawned much uncertainty and a conflict among the circuits. Following Freeman , the lower courts have discretion to terminate a desegregation case if a school board has consistently complied with a court decree in good faith and has eliminated the vestiges of past discrimination to the extent “practicable.” Freeman created a framework in which equitable decrees will not remain in effect perpetually and school districts can be returned to local control.

(Internal citations omitted.) Another court has observed that “[i]n Freeman and Dowell the Supreme Court has reminded district courts of their duty to recognize that education policy is to be determined through the democratic process.” Keyes v. Congress of Hispanic Educators, 902 F.Supp. 1274, 1281-82 (D.Colo.1995).

In Missouri v. Jenkins, 515 U.S. 70, 88 , 115 S.Ct. 2038 , 132 L.Ed.2d 63 (1995) (“Jenkins III”), the Court again emphasized that federal supervision of local school districts “was intended as a temporary measure to remedy past discrimination” and that finite limits restrict a federal court’s exercise of its constitutional authority in school desegregation cases. In Jenkins 111 , the State of Missouri appealed two district court orders that required the State: (1) to fund salary increases for virtually all instructional and non-instructional staff within the Kansas City, Missouri Metropolitan School District (“KCMSD”); and (2) to continue to *1030 fund remedial “quality education programs” because student achievement levels were still “at or below national norms at many grade levels.” -Id. at 73, 115 S.Ct. 2038 . The State argued that funding for teachers’ salaries was beyond the scope of the district court’s remedial authority and that, under Freeman , it had achieved partial unitary status with respect to the quality education programs already in place. The district court rejected both of those arguments, and the Eighth Circuit affirmed. Id. at 81, 115 S.Ct. 2038 (citing Jenkins v. Missouri, 11 F.3d 755 (8th Cir.1993)). Subsequently, the Eighth Circuit denied rehearing, en banc, with five judges dissenting. Id. (citing Jenkins v. Missouri, 19 F.3d 393 (8th Cir.1994)). 72

The Supreme Court, in reversing, stated the following:

The District Court’s pursuit of the goal of “desegregative attractiveness” results in so many imponderables and is so far removed from the task of eliminating the racial identifiability of the schools within the KCMSD that we believe it is beyond the admittedly broad discretion of the District Court. In this posture, we conclude that the District Court’s order of salary increases, which was “grounded in remedying the vestiges of segregation by improving the de-segregative attractiveness of the KCMSD,” App. to Pet. for Cert. A-90, is simply too far removed from an acceptable implementation of a permissible means to remedy previous legally mandated segregation.

Similar considerations lead us to conclude that the District Court’s order requiring the State to continue to fund the quality education programs because student achievement levels were still “at or below national norms at many grade levels” cannot be sustained.

Id. at 100, 115 S.Ct. 2038 (internal citations omitted). 73

Following the remand of Jenkins III to the district court, Judge Clark provided a succinct analysis of the Supreme Court’s gradual change in direction in school desegregation cases, as chronicled by its decisions in Dowell, 498 U.S. 237 , 111 S.Ct. 630 , 112 L.Ed.2d 715 , Freeman, 503 U.S. 467 , 112 S.Ct. 1430 , 118 L.Ed.2d 108 , and Jenkins III, 515 U.S. 70 , 115 S.Ct. 2038 , 132 L.Ed.2d 63 :

*1031 No longer must the Court eliminate the vestiges of segregation “root and branch.” See Green [citation omitted]. Instead the Court must only assess whether everything “practicable” has been done to eliminate the vestiges of the prior discrimination and further, the Court may grant unitary status in incremental stages. The clear standard articulated in recent unitary status cases by the Supreme Court requires that defendants must show that they have “complied in good faith with the desegregation decree since it was entered” and that the “vestiges of past discrimination have been eliminated to the extent practicable.” [Citations omitted.]

Jenkins v. State of Missouri, 959 F.Supp. 1151, 1155 (W.D.Mo.1997), aff'd, 122 F.3d 588 (8th Cir.1997).

Finally, in Coalition to Save Our Children v. State Bd. of Educ. of Delaware, 90 F.3d 752, 760 (3rd Cir.1996), the Third Circuit found that the Court’s holdings in Freeman and Jenkins were intended to create “a reasonable limit on the duration of ... federal supervision.” In support of that conclusion, the Court stated the following:

We are keenly aware that, for as long as we have imposed federal supervision on local school boards, those bodies have suffered the loss of their defining function — control over their own schools. Thus, in the present matter the citizens of the New Castle school districts have been denied for nearly 20 years what the Court has described as the “vital national tradition” of “local autonomy of school districts.” Freeman, 503 U.S. at 490 , 112 S.Ct. 1430 , (quoting Dayton Board of Educ. v. Brinkman, 433 U.S. 406 , 97 S.Ct. 2766 , 53 L.Ed.2d 851 (1977)).

In sum, we cannot reconcile the prospect of indefinite federal supervision of local school districts with the ultimate purpose of that supervision — to foster the creation of autonomous, racially balanced school systems. Accordingly, we remain attentive to the Supreme Court’s repeated instructions that such supervision be “temporary” and “transitional.”

Id. at 760-61.

B. Applicable Standard For Determining If LRSD Is Unitary

In Dowell, the Court recognized that a school district under federal supervision “is entitled to a rather precise statement of its obligations.” Dowell, 498 U.S. at 246 , 111 S.Ct. 630 . In most school desegregation cases, that “precise statement” comes in the form of a desegregation plan formulated and imposed by the district court. E.g. Keyes, 902 F.Supp. at 1274 ; Tasby v. Woolery, 869 F.Supp. 454 (N.D.Tex.1994). In fact, as noted earlier, in the early stages of this case, Judge Woods formulated and imposed just such a desegregation plan that called for consolidation of all three Pulaski County school districts. LRSD, 597 F.Supp. at 1220. On November 7, 1985, the Eighth Circuit reversed Judge Woods’ decision and formulated its own desegregation plan, which the three school districts were required to implement. LRSD, 778 F.2d at 404 .

All of that changed on December 12, 1990, when the Eighth Circuit approved the 1990 Settlement Agreement, the separate Settlement Plans for LRSD, PCSSD, and NLRSD, and the Interdistrict Settlement Plan. Together, these settlement documents spelled out each of the three school district’s desegregation obligations, which included all of the Green factors, plus a host of additional obligations that each of the school districts voluntarily agreed to implement. Thus, under the original 1990 settlement documents, LRSD could only achieve unitary status by implementing all of the desegregation obligations contained *1032 in its 1990 Settlement Plan and the Inter-district Settlement Plan.

In 1992, LRSD and Joshua requested the district court to enter an Order approving certain modifications to LRSD’s 1990 Settlement Plan and the Interdistrict Settlement Plan. The district court approved these modifications which became known as LRSD’s May 1992 Desegregation Plan (docket no. 1587) and the May 1992 Interdistrict Desegregation Plan (docket no. 1587). For the next six years, LRSD’s path to unitary status required it to implement and comply with all of the desegregation obligations contained in those two documents.

On January 21, 1997, LRSD and Joshua filed a Joint Motion for Approval of the Revised Plan (docket no. 3107). The Revised Plan included sections addressing each of the Green factors: (1) student assignment (§§ 2.3, 3, and 4); (2) faculty and staff (§§ 2.2-2.2.7); (3) transportation (§§ 3.2.7 and 4.7); (4) extracurricular activities (§§ 2.6 and 2.6.3); and (5) facilities (§§ 2.9-2.10). The Revised Plan also included other desegregation obligations that went beyond Green’s constitutional floor for a school district to become unitary. Examples of the areas in which LRSD voluntarily assumed these additional desegregation obligations were as follows: (1) student discipline (§§ 2.5-2.5.4); (2) advanced placement courses (§§ 2.6 and 2.6.2); and (3) guidance counseling (§§ 2.6.1 and 2.11.1).

Finally, the Revised Plan included sections addressing each of the seven desegregation obligations that the Eighth Circuit in Appeal of LRSD, 949 F.2d at 256 , held were “crucial, and with respect to which no retreat should be approved”: (1) double funding of incentive schools (§§ 3.6 and 5.5); (2) the Revised Plan does not affect the Magnet School Stipulation and related orders (§ l.l.b. and e.); (3) the Revised Plan does not materially change LRSD’s and PCSSD’s obligations regarding the operation of interdistrict schools (§ 4); (4) the Revised Plan does not affect the previously implemented intradistrict desegregation of PCSSD according to the previously agreed timetable; (5) with regard to the disparity in achievement, the Revised Plan provided for implementing programs, policies, and procedures designed to improve and remediate African-American achievement (§§ 2.7, 2.7.1, and 5); (6) with regard to early-childhood education, the Revised Plan required LRSD to maintain the HIPPY 74 program, to keep at least 720 seats in the four-year-old program at their current locations or in the same general area, and to maintain the early childhood program at Rockefeller Incentive School (§§ 3.3.a and 5.1); and (7) the Revised Plan required LRSD to implement programs and policies over the next three years to promote and encourage parental and community involvement and support in the operation of LRSD and the education of LRSD students (§§ 2.8 and 5.7).

On April 10,1998, Judge Wright entered an Order (docket no. 3144) approving the Revised Plan. Because none of the parties appealed that Order, it became a final consent decree which now governs LRSD’s desegregation obligations and controls the question of whether LRSD is entitled to a declaration of unitary status. Thus, LRSD and Joshua have contractually agreed on the desegregation obligations that LRSD must comply with, including the specific standard that must be applied to determine if LRSD is entitled to a declaration of unitary status: LRSD is entitled to an Order “releasing LRSD from supervision and finding LRSD unitary with regard to all aspects of school operations provided LRSD has substan *1033 tially complied with its obligations set forth in this Revised Plan” (emphasis added). 75 See § 11 of Revised Plan.

C. Burden Of Proof

In its en banc decision in Jenkins v. State of Missouri, 216 F.3d 720, 725 (8th Cir.2000), the Court held that:

[0]nee there has been a finding that a defendant established an unlawful dual school system in the past, there is a presumption that current disparities of the sort listed in Green are the result of the defendant’s unconstitutional conduct .... Therefore, the burden of proving unitariness rests on the constitutional violator.

Thus, in a case in which a school district has been determined to be a “constitutional violator,” it clearly has the burden of proving that it is in constitutional compliance with each Green factor and otherwise is entitled to unitary status. In Jenkins, however, the majority opinion went on to hold that KCMSD also had the burden of proof on the issue of minority student achievement and the achievement gap. 76

In this case, LRSD has never been adjudicated to be a “constitutional violator. ” 77 LRSD voluntarily filed this action, as Plaintiff, against PCSSD, NLRSD, and the State/ADE to compel consolidation of the three Pulaski County School Districts and to require the State/ADE to pay for its role in causing many of the interdistrict effects that resulted in LRSD becoming a predominantly black school district and NLRSD and PCSSD remaining predominantly white school districts. In every sense, LRSD was the prevailing party in this case. Under the 1990 Settlement Agreement, it was the primary beneficiary of over $129,000,000 in payments by the State/ADE, and under the four Settlement Plans, LRSD substantially increased the pool of available white students and avoided becoming what the December 16, 1981 Austin Report 78 predicted would be a vir *1034 tually all black school district by the late 1980’s or early 1990’s.

Accordingly, as I have repeatedly emphasized, this is not a typical school desegregation ease. Under the 1990 settlement documents, LRSD voluntarily agreed to a host of desegregation obligations that included and went well beyond the Green factors. The Eighth Circuit has recognized on numerous occasions that the parties’ settlement documents are contracts that bind them to discharge the obligations contained in those agreements. LRSD, 83 F.3d at 1017. In Knight v. PCSSD, 112 F.3d 953 , 955 (8th Cir.1997), the Court characterized the settlement documents in this case as “a particularization of federal law applicable to these parties.” In the same vein, the Court later referred to “the terms of the settlement agreement [becoming] the law of the case.” LRSD, 131 F.3d at 1258.

On April 10,1998, Judge Wright entered an Order (docket no. 3144) approving the Revised Plan, which was not appealed and is now a final consent decree that represents the law of the case. Under § 11 of the Revised Plan, LRSD was entitled to a finding that it was unitary, after the 2000-01 school year, absent a party challenging LRSD’s “substantial compliance” with its desegregation obligations. Furthermore, §11 explicitly provided that the party challenging LRSD’s “substantial compliance” had the “burden of proof.”

LRSD’s and Joshua’s voluntary agreement to allocate the burden of proof in this manner was entirely fair and appropriate in light of the fact that: (1) LRSD had never been determined to be a “constitutional violator” in this action; (2) most of the desegregation obligations LRSD voluntarily agreed to undertake in the Revised Plan went beyond the constitutionally mandated Green factors; 79 (3) LRSD had been operating under the 1990 Settlement Plan for eight years, a “long time”; 80 and (4) the Revised Plan was structured in such a way that LRSD was “presumed” to be unitary after it filed its March 15, 2001 Compliance Report, unless another party challenged its “substantial compliance” with the Revised Plan.

Joshua’s counsel has acknowledged on numerous occasions that his clients have the “burden of proof of showing ‘that LRSD has [not] substantially complied with its obligations set forth in [the] Revised Plan.’ ” Joshua’s Opposition to LRSD’s Motion for Immediate Declaration of Unitary Status at 48 (docket no. 3604); see also: (1) Joshua’s counsel’s statement that “the district court has given us and by agreement we accept the burden of proof’ (docket no. 3464, transcript of July 9, 2001 scheduling conference at 26, lines 14-17); and (2) Judge Wright’s ruling that, under § 11 of the Revised Plan, Joshua is the “challenging party” and has the burden of proving that LRSD was not in “substantial compliance,” as of March 15, 2001 (docket no. 3461, transcript of June 29, 2001 telephone conference at 26, lines 11-21).

As indicated previously, during the nine days of hearing evidence on LRSD’s Mo *1035 tion for an Immediate Declaration of Unitary Status (docket no. 3580), Joshua challenged LRSD’s substantial compliance with the following specific provisions of the Revised Plan: (1) § 2.1 (good faith); (2) §§ 2.5-2.5.4 and 2.12.2 (student discipline); (3) §§ 2.7, 2.7.1, 5.1-5.8, and 2.12.2 (academic achievement of African-American students); (4) §§ 2.6 and 2.6.3 (extracurricular activities); (5) §§ 2.6 and 2.6.2 (advanced placement courses); and (6) §§ 2.11-2.11.1 (guidance counseling). Thus, in accordance with § 11 of the Revised Plan, Joshua has the burden of proving LRSD’s substantial noncompliance in each of those six areas.

D. Meaning Of “Substantial Compliance”

The Revised Plan does not define “substantial compliance,” and LRSD and Joshua disagree over the meaning of that phrase. In LRSD’s Memorandum Brief in Support of Motion for Immediate Declaration of Unitary Status at 12 (docket No. 3581), it argues that the Court’s holding in Cody v. Hillard, 139 F.3d 1197 , 1199-1200 (8th Cir.1998), stands for the proposition that “a party to a consent decree substantially complies with the decree so long as the party’s noncompliance does not cast doubt on [the party’s] future compliance with the Constitution.” Joshua argues that LRSD has misconstrued the Court’s holding in Cody (docket no. 3604 at 48).

The underlying consent decree in Cody was imposed by the district court in a South Dakota prison reform case. After operating under the consent decree for eleven-years, prison officials moved for its termination. The district court, without conducting any hearings, entered an order dissolving the consent decree and stating in a conclusory manner that “the defendants have conscientiously and in good faith complied substantially with its [the consent decree’s] terms.” Id. at 1199. The Eighth Circuit held that the district court’s bare bones decision to dissolve the consent decree was inadequate:

The record indicates that there have been failures in the past to comply with the decree and supplemental orders, and that there are still at least some violations of the decree. The district judge’s order does not give us enough information to determine whether he ignored the evidence of past and present violations or whether he considered any violations inconsequential in the context of substantial compliance. If the conditions Powitz complained of constitute violations of the consent decree, the district court must exercise its discretion in determining whether those violations were serious enough to constitute substantial noncompliance and to cast doubt on defendants’ future compliance with the Constitution.

Id. (emphasis added).

While I believe Cody is helpful in construing the meaning of “substantial compliance,” as that phrase is used in the Revised Plan, I disagree with LRSD’s interpretation of that case. The Court in Cody made it clear that, in order to determine if a party is in “substantial compliance” with a consent decree, the trial court must examine whether any of the alleged violations of the consent decree “were serious enough to constitute substantial noncompliance” and “to cast doubt on defendants’ future compliance with the constitution.” The Court in Cody also recognized that a party can be in “substantial compliance” with a consent decree even if it has committed violations that are “inconsequential” in light of the party’s overall performance.

Thus, under the Court’s holding in Cody, I am required to examine whether any of LRSD’s failures to comply with the Revised Plan in the six challenged areas are “serious enough”: (1) to constitute “sub *1036 stantial noncompliance”; and (2) “to cast doubt” on LRSD’s “future compliance with the constitution.” 81 I also must make detailed Findings of Fact regarding each of the six areas of the Revised Plan in which Joshua contends LRSD has failed to substantially comply with its desegregation obligations.

E. The Metaphysics Of Using The “Achievement Gap” As A Factor In Deciding Unitary Status.

As indicated earlier, in Jenkins III, 515 U.S. at 73 , 115 S.Ct. 2038 , the Court relieved the State of Missouri of the obligation of continuing “to fund the [KCMSD] quality education programs because student achievement levels were still ‘at or below national norms at many grade levels’ .... ” The lower court had imposed that obligation on the State based upon a generalized finding that the academic achievement gap between African-American and white students in KCMSD was a vestige of de jure segregation. The Court made it clear that, to sustain such a result, the district court must make a much more specific and precise finding regarding the causal link between the achievement gap and the system of de jure segregation that was in place decades earlier:

The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable.... Although the District Court has determined that “[segregation has caused a system wide reduction in achievement in the schools of the KCMSD,” 639 F.Supp. at 24, it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education program.

Jenkins III at 101 , 115 S.Ct. 2038 (emphasis added). The Court went on to provide the following guidance on how the minority student achievement gap should figure into the “remedial calculus” of a school desegregation case:

Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments [citations omitted] so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure into the remedial calculus. [Citations omitted.] Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own.

Id. (emphasis added).

Thus, under the test established by the Court in Jenkins III , the gap in minority student achievement must be causally linked by expert testimony and other evidence which is sufficiently specific to allow the trial court to identify “the incremental effect that segregation has had on minority student achievement.” Id. at 101 , 115 S.Ct. 2038 . Five years later, Judge Gibson, in his concurring opinion in Jenkins v. State of Missouri, 216 F.3d 720, 732 (8th Cir.2000), succinctly stated this proposition as follows:

In fact, Jenkins III neither “authorizes” nor forbids [a lower court finding the minority student achievement gap is a] vestige [of de jure segregation]; rather, it tells us to look at the evidence in the case to determine what part of the gap (if any) was caused by the constitutional violation.

*1037 Sociologists and educators have recognized for over a decade that there are a host of factors, completely unrelated to the effects of de jure segregation, that also are responsible for the minority student achievement gap. Some of these other factors include low birth weight, poverty, whether the student is raised by a single parent, parental interest and involvement, and peer influence. Complicating this issue still further is the fact that the achievement gap “exists across the country in prior segregated school districts and school districts that have not discriminated against minority students.” 82

All of this raises an obvious question and serious problem: How does a trial court go about determining, with any degree of precision, the percentage of the achievement gap (assuming there is any) that is causally related to de jure segregation (which ended many decades earlier) — after somehow excluding the host of other socioeconomic factors that are universally recognized as also contributing to the achievement gap? Reviewing the reported cases in which brave souls have undertaken this task puts one in mind of trying to nail jelly to a wall.

For example, after Jenkins III was remanded, the trial court conducted a three-week hearing on the State of Missouri’s Motion for Declaration of Unitary Status. Jenkins v. State of Missouri, 959 F.Supp. 1151 (W.D.Mo.1997). Significantly, the trial court did not analyze and make specific findings of fact to support the conclusion ’that the African-American student achievement gap in the KCMSD was causally linked to the de jure system of education that had ended decades earlier. Instead, the trial court engaged the presumption that the disparity in academic achievement between African-American and white students was the result of de jure segregation.

Most of the testimony during the three-week hearing was provided by expert witnesses who battled over the extent, if any, that the achievement gap in the KCMSD (after excluding socioeconomic and other factors) was actually the result of de jure segregation, which the trial court referred to as the “race effect.” Ultimately, the trial court accepted the expert testimony of Dr. William Trent, who concluded that 4% to 9% of the initial variance in African-American and white student test scores could be explained by the “race effect” and 2% to 4% by lower teacher expectations for African-American students. Id. at 1158 and 1164. The trial court then took the high end of both of these ranges and concluded that 13% of the initial achievement gap was due to the “race effect.” The trial court also concluded, with no supporting analysis, that another 13% should be added to account for the increase in the achievement gap as African-American children progress through the KCMSD. Thus, the trial court held that, taken together, 26% of the achievement gap in KCMSD was attributable to racial discrimination. Id. at 1165 . The trial court’s decision was later affirmed by a three-judge panel of the Eighth Circuit in Jenkins v. State of Missouri, 122 F.3d 588 (8th Cir.1997).

After several careful readings of the trial court’s decision in Jenkins, 959 F.Supp. 1151 , I am still struck by what appears to me to be the largely speculative conclusion that 26% of the achievement gap in the KCMSD is attributable to the “race effect.” I nowise understand why the trial court decided to use the high end of both the 4% to 9% and the 2% to 4% ranges to calculate the 13% initial achievement gap *1038 attributable to the “race effect.” If the trial court had used the lower end of those ranges, the effects attributable to racial discrimination would have been only 6%. Likewise, choosing simply to double the initial 13% “race effect,” to account for the increase in the achievement gap as African-American children progress through the KCMSD, creates at least the appearance that the trial court pulled a number from thin air. I am afraid that, try as I might to follow the trial court’s reasoning, I am left with the distinct impression that it was forced to “guess” in arriving at these percentages because Dr. Trent, the expert witness, was also “guessing” in his testimony that attempted to calculate— nay, divine — the percentage of the KCMSD achievement gap, if any, that was the result of racial discrimination. 83

In his dissent in Jenkins v. State of Missouri 216 F.3d 720, 735-36 (8th Cir. 2000), Judge Beam made a strong argument against a trial court ever accepting an academic achievement gap as a vestige of de jure segregation which must be eliminated or narrowed before a school district can achieve unitary status:

As a threshold matter, I note that any evidence that such a vestige exists in KCMSD is dubious at best. Even a cursory examination of the bases for Dr. Trent’s opinions reveal them to be nothing more than guesses and speculation. This court’s reliance on a black-white achievement gap to measure lingering effects of invidious segregation runs contrary to the finding of every other Circuit Court that has considered the issue. See United States v. City of Yonkers, 197 F.3d 41 , 54-55 (2d Cir.1999); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528 , 537-38 (7th Cir.1997); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776-77 (3d Cir. 1996). In fact, Dr. Trent’s testimony on this purported phenomenon was rejected by the First Circuit. See Wessmann v. Gittens, 160 F.3d 790, 804 (1st Cir.1998). Similar evidence based upon Dr. Trent’s methodology was held inadmissible under Daubert standards by the Seventh Circuit. See People Who Care, 111 F.3d at 537. Nonetheless, this court clings to the claimed existence of such a vestige of discrimination.

Judge Beam also pointed out the conundrum created for KCMSD in being required to narrow the achievement gap as a prerequisite for attaining unitary status:

The undisputed evidence offered at the 1997 hearing shows that non-minority and minority students respond equally to effective teaching and innovative educational techniques. The implemented and to-be-implemented programs at KCMSD will, according to the testimony, raise the test scores of all KCMSD students without regard to race. This laudable and sought after educational result occurs because, as the Supreme Court noted in Jenkins III , a “rising tide lifts all boats.” [Citation omitted.] In other words, under the current plan *1039 all KCMSD students will improve at the same rate in normalized curve equivalents (NCEs). Clearly then, the evidence shows that the presently approved court educational plan, by itself, will not impact the achievement gap. Without influence from factors well beyond the control of KCMSD, the approach now championed by the class and the court will only serve to make the goal unattainable. In short, when the gap is eliminated, if it ever is, it will not be because of federal court supervision of curriculum and classroom instruction. It will be because of societal changes that are not achievable through use of the remedial power and authority of the federal courts.

Id. at 738 (footnotes omitted).

In People Who Care v. Rockford Board of Education, 246 F.3d 1073 (7th Cir.2001), Judge Posner, writing for a three-judge panel, reversed the lower court and found that the Rockford school district was unitary. In reaching that decision, Judge Posner rejected the argument that the minority student achievement gap in the Rockford public schools was a vestige of de jure segregation dating back to an earlier period in Rockford’s history:

Yet it is obvious that other factors besides discrimination contribute to unequal educational attainment, such as poverty, parents’ education and employment, family size, parental attitudes and behavior, prenatal, neonatal, and child health care, peer-group pressures, and ethnic culture. Some of these factors may themselves be due to or exacerbated by discrimination, but not to discrimination by the Rockford school board. The board has no legal duty to remove those vestiges of societal discrimination for which it is not responsible. Insofar as the factors that we have mentioned, rather than unlawful conduct by the Rockford school board in years past, are responsible for lags in educational achievement by minority students, the board has no duty that a federal court can enforce to help those students catch up. It may have a moral duty; it has no federal constitutional duty.

No effort has been made by the plaintiffs, despite our warnings, to partition, however crudely, the lag in achievement that is due to the school board’s past illegalities and the lag that is due to other factors, factors for which the school board bears no federal legal responsibility.

Id. at 1076-77 . Accord Coalition to Save Our Children v. State Board of Education of Delaware, 90 F.3d at 779 (“As humans, we acknowledge with melancholy the fact that many socioeconomic factors militate against a complete level 'playing field in our society. As judges, however, we are powerless to alter formidable social, economic and demographic forces and conditions over which no legal precept has control”).

In this case, the original remedy in LRSD v. PCSSD, 778 F.2d 404, 434-36 (8th Cir.1985), made no mention of any desegregation obligations related to narrowing or eliminating the minority student achievement gap in any of the three Pulaski County school districts. Under the 1990 Settlement Agreement and its 1990 Settlement Plan, LRSD voluntarily agreed to eliminate the achievement gap between African-American and white students “on norm-referenced and criterion-referenced tests.” 84 Later, this goal was also inelud- *1040 ed in LRSD’s May 1992 Desegregation Plan (docket no. 1587 at 1), which contained certain jointly agreed to modifications to LRSD’s 1990 Settlement Plan. See discussion supra at pp. 27-30.

In May of 1996, Judge Wright took testimony from three nationally recognized expert witnesses on various desegregation obligations contained in LRSD’s 1990 Settlement Plan, as revised by its May 1992 Desegregation Plan. Each of those experts offered testimony on the issue of LRSD’s obligation to eliminate the academic achievement gap. See Testimony of Herbert J. Walberg, Ph.D. (docket no. 2692 at 33-86); David J. Armor, Ph.D. (docket no. 2693 at 18-39); and Gary Orfield, Ph.D. (docket no. 2768 at 25-31). Together, the testimony of these experts made it clear that, regardless of the effort put forth by LRSD, it was unlikely this gap could be substantially narrowed, much less eliminated, within the foreseeable future.

LRSD attempted to use the testimony developed during these hearings to support its May 17, 1996 Motion to End Federal Court Jurisdiction (docket no. 2666). On September 23, 1996, Judge Wright entered a Memorandum and Order (docket no. 2821) denying LRSD’s Motion to End Federal Court Jurisdiction. In this Memorandum and Order, Judge Wright urged LRSD and Joshua to use the expert testimony developed during the May 1996 hearings as a basis for modifying “the parts of the plan that are ineffective or unworkable” so that LRSD could put itself in a better position to achieve unitary status and release from court supervision.

On January 21, 1998, LRSD and Joshua filed their Joint Motion for Approval of the Revised Plan (docket no. 3107). In contrast to LRSD’s 1990 Settlement Plan, as modified by its May 1992 Desegregation Plan, the Revised Plan did not obligate LRSD to narrow or eliminate the achievement gap. Rather, under § 2.7, LRSD was obligated only to implement “policies, programs and procedures designed to improve and remediate the academic achievement of African-American students .... ” Under § 2.7.1, it also was obligated to make annual assessments of the academic programs implemented to remediate and improve African-American achievement in order to determine the effectiveness of those programs.

In this case, no court has ever determined generally, or with the specificity required in Jenkins III , what portion, if any, of the minority student achievement gap in LRSD is causally linked as a vestige of de jure segregation. Furthermore, Joshua has failed to introduce any evidence to establish that: (1) the achievement gap is causally linked to the system of de jure segregation which existed in LRSD decades earlier; and (2) the portion of the achievement gap which is attributable to de jure segregation, after excluding all of the socioeconomic factors that also have contributed to that gap. Rather, Joshua has raised the achievement gap issue as part of their challenge to LRSD’s substantial compliance with §§ 2.7 and 2.7.1 of the Revised Plan. Therefore, my task is far easier than the one Judge Clark faced after the Supreme Court reversed and remanded Jenkins III ; for I must only decide the narrow question of whether Joshua has met their burden of proving that LRSD has failed to substantially comply with its obligations to implement policies, programs, and procedures designed to improve and remediate the academic achievement of African-American students under § 2.7 and to make the annual assessment of those policies, programs, and procedures to determine their effectiveness, as required by § 2.7.1.

Y. Findings Of Fact

As I have previously explained, the question of unitary status turns on wheth *1041 er Joshua has sustained its burden of proving that LRSD failed to substantially comply with its obligations in one or more of the six challenged areas of the Revised Plan: 85 (1) good faith (§ 2.1); (2) student discipline (§§ 2.5 through 2.5.4 and § 2.12.2); (3) extracurricular activities (§§ 2.6 and 2.6.3); (4) advanced placement courses (§§ 2.6 and 2.6.2); (5) guidance and counseling (§§ 2.11 and 2.11.1); and (6) academic achievement of African-American students (§§ 2.7, 2.7.1, 5.1 through 5.8 and § 2.12.2). 86 My Findings of Fact, organized according to the areas of the Revised Plan that have been challenged, are set forth below. 87

A. Good Faith

1. The Little Rock School Board ( the “Board”) enacted fifteen specific policies related to the obligation of good faith. 88 Together, these policies committed LRSD to fighting all forms of discrimination (gender, ethnicity, and race, age, religion, and handicapped/disability). Joshua has not challenged the facial adequacy of the Board’s policies and regulations enacted to implement the obligation of good faith contained in § 2.1. 89

2. Section 8.2, et seq., contained a three-step procedure for resolving, in a timely and expeditious manner, any compliance issues that might arise during the three-year term of the Revised Plan. The first step in this procedure called for the complaining party to bring the compliance issue to the attention of LRSD. If the complaining party and LRSD could not resolve the issue, it was to be submitted to the ODM for facilitation. If that failed, *1042 the issue was to be presented to the Court. 90

3. During the term of the Revised Plan, Joshua raised only five compliance issues pursuant to the procedure outlined in § 8.2, et seq. Each of those issues was resolved without requiring Court intervention. See LRSD’s March 15, 2001 Compliance Report (the “Final Compliance Report”) at 166. 91 In the nine days of hearings on unitary status, Joshua did not raise any of those five previously resolved compliance issues. Instead, Joshua asserted six new compliance issues, none of which had been raised and pursued on a timely basis under § 8.2, et seq., of the Revised Plan.

4. Mr. Baker Kurrus, the current President of the Board, testified that the Board reserved 'time for Joshua to appear at each Board meeting held during the term of the Revised Plan. TR. July 24, 2002, at 750-51. The minutes of the Board’s meetings for the 1998-99, 1999-2000, and 2000-01 school years were introduced into evidence as CX 739. According to those minutes, the Board held seventy meetings during the three-year term of the Revised Plan. However, Joshua appeared and addressed the Board on only three occasions:

(a)On July 22, 1999, Joshua’s attorney addressed the Board and raised various general concerns regarding LRSD’s implementation of its obligations under the Revised Plan. CX 739, minutes of July 22, 1999 Board meeting at 2. Mr. Kurrus testified that then Little Rock School Superintendent, Dr. Les Camine, worked with Joshua to resolve those concerns. Tr. July 24, 2002, at 753. Joshua failed to raise any of those concerns again at either a Board meeting or pursuant to § 8.2 of the Revised Plan. See CX 739 and Final Compliance Report at 166.

(b) During the November 10, 1999 Board meeting, Joshua’s counsel appeared to support parents and community members opposed to LRSD closing Mitchell Elementary School. CX 739, minutes of November 10, 1999 Board meeting at 2. According to Mr. Kurrus, the Board subsequently decided not to close Mitchell Elementary. Tr. July 24, 2002, at 762.

(c) During a Board meeting on January 25, 2001, Joy Springer, a legal assistant for Joshua’s counsel, advised the Board that: (a) some issues still remained to be addressed regarding LRSD’s implementation of the Revised Plan; and (b) Joshua hoped for a dialogue with LRSD administrators and the Board about those issues before taking any legal action, CX 739, minutes of January 25, 2001 Board meeting at 3. After January 25, 2001, Joshua’s counsel neither appeared again before the Board, nor raised any compliance issues pursuant to § 8.2 of the Revised Plan. See CX 739 and Final Compliance Report at 166. These facts create at least the appearance that LRSD administrators and Joshua were able to resolve the compliance issues alluded to by Ms. Springer during the January 25, 2001 Board meeting.

5.In July of 1998, LRSD began paying Joshua’s counsel $4,027.78 per month to monitor its compliance with the obligations contained in the Revised Plan. See docket no. 3581, Exhibits 7 and 8; Tr. July 24, 2002, at 754-56. During almost the full three-year term of the Revised Plan, Josh *1043 ua’s counsel submitted invoices to LRSD for his performance, of monitoring work, and, pursuant to those invoices, LRSD paid Joshua’s counsel a total of $124,861.15. Id. at Exhibits 7 and 8. Mr. Kurrus’s testimony made it clear that, in exchange for being paid that money, LRSD expected Joshua’s counsel to bring to its attention, on a timely and ongoing basis, any compliance issue which, if left unresolved, might result in Joshua challenging LRSD’s right to a declaration of unitary status under § 11 of the Revised Plan:

Q. I thought a minute ago you said you weren’t aware we were trying to be cooperative.

A. No, I was aware-I guess what I was going to say was that we have a settlement agreement. It’s a written document, and it details very specifically the things that are to be done in the event we seek unitary status or if you have an objection to that. We agreed to pay money for that. That’s why we paid that money, Your Honor, is because it was a continuing obligation of monitoring and work. and a process whereby you [referring to Joshua’s counsel] on behalf of your clients were going to step forward and tell us what we were doing wrong. That’s the process that I relied cm.

Tr. July 24, 2002, at 763 (emphasis added).

6.I find that the purpose for LRSD retaining Joshua’s counsel to monitor its compliance with the Revised Plan and for including a procedure in § 8.2, et seq., for raising and resolving compliance-issues, in a timely and expeditious manner, was to avoid any last minute surprises under § 11. 92 I further find that LRSD reasonably relied on Joshua’s counsel to bring to its attention, in a timely and expeditious manner, any compliance issues so that they could be resolved pursuant to the procedure contained in § 8.2, et seq., of the Revised Plan.

7. On March 15, 2000, LRSD filed the Interim Compliance Report, 93 which set forth in detail all of the policies, programs, and procedures that it had implemented to comply with its obligations under the Revised Plan. This Interim Compliance Report unquestionably put Joshua’s counsel on notice of each of the six alleged compliance problems that are now before me. Although the Interim Compliance Report solicited responses from all interested parties, Joshua elected not to respond.

8. Based upon my review of the record, it does not appear that Joshua raised any of the six compliance issues now before me until several months after LRSD filed its Final Compliance Report on March 15, 2001. Furthermore, it appears that LRSD’s first notice of the substance of those alleged compliance problems was its receipt of Joshua’s “Opposition to LRSD’s Compliance Report” (docket no. 3447), which was filed on June 25, 2001.

9. Section 11 of the Revised Plan did not expressly require an issue to be raised pursuant to § 8.2, et seq., before it may be asserted as a ground for denying LRSD unitary status. However, read together, the intent of §§ 8.2 and 11 was for Joshua to use the procedure outlined in § 8.2 to raise compliance issues, on a timely basis, so that an effort could be made to resolve them before LRSD filed its Final Compliance Report. This is especially true in light of LRSD’s having paid Joshua’s counsel over $4,000 per month to monitor its ongoing compliance with the Revised Plan. *1044 Thus, I find that Joshua’s failure to raise any of the alleged compliance issues now before the Court, until after LRSD filed its Final Compliance Report, is one factor that I should weigh in deciding whether LRSD’s alleged shortcomings in those areas rise to the level of substantial noncompliance.

10. Section 2.1.1 of the Revised Plan obligated LRSD to hire a “desegregation and/or education expert approved by Joshua” to assist in “the development of the programs, policies, and procedures to be implemented in accordance with [the] Revised Plan and to assist LRSD in devising remedies to problems concerning desegregation or racial discrimination which adversely affect African-American students.” In the summer of 1998, with the approval of Joshua, LRSD hired: (a) Dr. Terrence Roberts, the co-chair of the Psychology Department at Antioch University in Los Angeles and one of the “Little Rock Nine,” the first group of African-American students admitted to Central High School in 1957 (Tr. July 24, 2002, at 615-16); and (b) Dr. Steven Ross, a professor of education research at the University of Memphis (Tr. July 23, 2002, at 539).

11. Dr. Roberts described the work that he performed for LRSD as follows:

Since that time [the summer of 1998] I have been actively involved in doing review of policy and procedure. I have looked at programs that have been developed, offered commentary on those programs. I have developed training programs for staff, including teachers, bus drivers, security personnel, counselors, and others. And I also have been involved in training a group of trainers to carry on a program that I developed for the district.

Tr. July 24, 2002, at 619-20. Although Dr. Roberts testified that he did not participate in LRSD’s weekly Compliance Committee meetings, he “regularly got reports from what the committee was doing, so I had comments, minutes, that sort of thing.” Id. at 621.

12. Most of Dr. Roberts’ work focused on creating a program called “Coping With Difference,” which was designed to assist LRSD in implementing its desegregation obligations. Id. at 627. He directly trained hundreds of LRSD employees under that program, and also qualified a number of LRSD employees as trainers so that, in his absence, they could continue to teach “Coping With Difference” to other LRSD employees. Id. at 645-46.

13. Dr. Roberts trained guidance counselors regarding issues of diversity so that they could better perform their jobs. Id. at 621. He also “spent a lot of time” working with Dr. Bonnie Lesley, the Associate Superintendent of Curriculum and Instruction. Id. at 622. Among other things, Dr. Roberts helped write a program designed to increase the number of African-American students in pre-AP and AP courses. Id. at 630, 638-39; CX 869 at 33.

14. During his testimony, Dr. Roberts was critical of LRSD administrators whose interest “was in meeting the letter of the law, that the real concern was about dotting the I’s and crossing the T’s of every single thing in that plan.” Id. at 630. He described this approach as a “compliance mentality” and stated that it diminished LRSD’s focus on the more important issue of “attitudes toward people who are different.” Id. at 631. While I can understand an educator such as Dr. Roberts being surprised by LRSD’s “compliance mentality,” it is one of the bedrock principles of school desegregation litigation that a school district can only emerge from federal court supervision after it has carefully dotted all the I’s and crossed all the T’s necessary to establish that it is operating in a unitary and constitutional fashion.

*1045 15. Having operated continuously under federal court supervision for over four decades, LRSD unquestionably has developed something of a “compliance mentality.” This inevitable negative by-product of long-running school desegregation cases no doubt played a role in the Supreme Court reaching a series of decisions, 94 in the 1990’s, that made it easier for school districts to achieve unitary status, regarding part or all of their operations. Only after a school district has become unitary can administrators and teachers focus their full efforts away from “compliance” and back to the task at hand: providing children with the best possible education and developing creative programs to address the host of challenges now confronting educators in this district and across the country.

16. Finally, Dr. Roberts testified that, during his address to the Board in October of 1999, he stated that LRSD had a tremendous amount of energy directed toward making sure that it met all of the criteria listed in the Revised Plan. Id. at 646-47. He also testified that he told the Board his work was being well received, the process was moving along as planned, and LRSD had the potential for becoming a model school district for the entire country. Id. at 647.

17. On January 11, 2001, the Board further documented its commitment to comply with the Constitution by adopting the “Covenant for the Future” (the “Covenant”). In the Covenant, the Board promised to continue to exercise its best efforts to: (a) improve the academic achievement of all students; (b) comply with the Constitution and ensure that no person is discriminated against on the basis of race, color, or ethnicity in the operation of LRSD; and (c) provide equitable educational resources, programs, and opportunities in a non-discriminatory environment for all students attending LRSD schools. See Final Compliance Report (docket no. 3410) at 1; and CX 719, Policy AB.

18. Joshua introduced evidence of complaints of discrimination made by African-American parents and students to administrators or principals in an effort to show that LRSD did not act in good faith in responding to those complaints. 95 In every instance, the LRSD principal or administrator who received and investigated those complaints was an African-American. Furthermore, Mr. James Washington, the Ombudsman, made it clear in his testimony that he thoroughly investigated all allegations of race-based mistreatment that were brought to his attention by parents or students. Finally, LRSD’s policies, regulations, and training programs clearly conveyed to all administrators, principals, and teachers that racial discrimination would not be tolerated.

19. The isolated and anecdotal evidence presented by Joshua’s witnesses regarding discrimination they experienced or perceived to exist during the term of the Revised Plan failed to prove that LRSD was not in substantial compliance with the obligation of good faith contained in § 2.1 of the Revised Plan. Based upon my review of the record and consideration of all of the testimony, I find that race-based mistreatment of students is neither accepted nor tolerated by LRSD. In this regard, Dr. Marian Lacey, an African-American *1046 and LRSD’s Assistant Superintendent of Secondary Schools, forcefully testified that, if race-based mistreatment by a teacher was brought to the attention of a school principal, the principal would investigate that allegation and, if substantiated, take appropriate action against the teacher. I credit her testimony. Tr. July 24, 2002, at 804-05.

20. I find that Dr. Roberts was correct in his observation that LRSD focused a great deal of effort on dotting the I’s and crossing the T’s regarding its compliance with the Revised Plan. There can be no question that LRSD administrators, principals, and teachers took their responsibilities under the Revised Plan seriously and exercised their best efforts to comply with each section of that document. Tr. November 19, 2001, at 188-91, 193; Tr. August 1, 2001, at 672-74. I also find that the Board implemented policies and regulations designed to: (a) fully implenlent all of the desegregation obligations contained in the Revised Plan; (b) comply with the Constitution; (c) remedy the effects of past discrimination against African-American students; and (d) ensure that no person was discriminated against on the basis of race, color, or ethnicity.

21. I recognize the crucial importance of finding that LRSD discharged the obligation of good faith contained in § 2.1 of the Revised Plan. In essence, it means that LRSD can be trusted, in the future, to operate the Little Rock school system in compliance with the Constitution, without the need for federal court supervision of those areas in which I decide it is unitary. In finding that LRSD can be trusted in the future to comply with the Constitution, I take comfort from the words of Judge Wollman in his concurring opinion in Appeal of LRSD, 949 F.2d 253, 259 (8th Cir.1991):

On the other hand, we should remember that this is not 1954 or 1957 — or even 1985, for that matter — and the time has come to cease excoriating the leaders of the present for the sins of their forebears and to vouchsafe them some credit for the efforts they have made to comply with the several decrees that have been entered in this long-standing case.

22.Since the parties reached the historic settlement of this case in 1989, I find that, overall, LRSD has established a good record of acting in good faith to implement and comply with its desegregation obligations under the various settlement plans and to operate the Little Rock school system in compliance with the Constitution. I further find that LRSD has substantially complied with its obligations under § 2.1 of the Revised Plan and that, in the future, it can be trusted to follow the Covenant and the Constitution.

B. Student Discipline

1. Sections 2.5 through 2.5.4 of the Revised Plan imposed certain obligations on LRSD regarding student discipline. 96 The Board enacted the following policies and regulations to implement LRSD’s obligations under §§ 2.5 through 2.5.4: AC (nondiscrimination); ACB (nondiscrimination on the basis of ethnicity and race); JRAA and JRAA-R (purging student discipline records); and JI (student rights and responsibilities as set forth in the Student Handbook). See CX 719. Joshua has not challenged the facial adequacy of *1047 any of the Board policies and regulations on student discipline. Joshua also has not challenged LRSD’s compliance with its obligations to purge student discipline records, after the fifth and eighth grades, as required by § 2.5.2 of the Revised Plan.

2. LRSD voluntarily prepared a Compliance Plan dated June 10, 1999, which outlined how it intended to go about implementing its obligations under each section of the Revised Plan. See CX 544. The Compliance Plan: (a) identified the title of each LRSD administrator who had overall responsibilities for implementing each section of the Revised Plan; (b) identified the Board policies that had been or were to be enacted to implement each section of the Revised Plan; and (c) set forth the procedures and programs that had been developed, to date, under each section of the Revised Plan. LRSD also prepared a Compliance Handbook dated July, 1999. See CX 545. 97 The Compliance Handbook was prepared to inform LRSD personnel an

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