                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                          ________________________

                          Nos. 02-3867EA, 03-1147EA
                          ________________________


Little Rock School District,           *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
                                       *
Alexa Armstrong; Karlos Armstrong; * On Appeal from the United
Khayyam Davis; Alvin Hudson, Tatia * States District Court
Hudson, Lorene Joshua; Leslie Joshua; * for the Eastern District
Stacy Joshua; Wayne Joshua; Sarah      * of Arkansas.
Facen; Derrick Miles; Janice Miles;    *
John M. Miles; NAACP; Joyce Person; *
Brian Taylor; Hilton Taylor; Parsha    *
Taylor; Robert Willingham; and         *
Tonya Willingham,                      *
                                       *
            Appellants.                *
                                  ___________

                               Submitted: September 11, 2003
                                   Filed: March 2, 2004
                                    ___________

Before WOLLMAN, HEANEY, and RICHARD S. ARNOLD, Circuit Judges.
                         ___________

RICHARD S. ARNOLD, Circuit Judge.
       This case consolidates two appeals, both arising from the Little Rock School
District's request for unitary status. First, the Joshua Intervenors1 appeal from the
District Court's2 denial of their Motion for Recusal of District Judge and Vacating of
Orders, Rulings, and Judgments. We review a district court's denial of recusal for
abuse of discretion. See In re Hale, 980 F.2d 1176, 1178 (8th Cir. 1992); United
States v. Walker, 920 F.2d 513, 516 (8th Cir. 1990). We conclude that Judge
Wilson's representation of Judge Henry Woods at a much earlier stage of the case,
and on far different issues, did not involve the same "matter in controversy" for
purposes of 28 U.S.C. § 455(b)(2); thus, we affirm the denial of the Joshua
Intervenors' Motion for Recusal.

       The Joshua Intervenors also appeal from the District Court's judgment granting
the Little Rock School District (LRSD) partial unitary status. The Joshua Intervenors
assert: (1) that the District Court erred by not requiring and considering additional
reports from the Office of Desegregation Monitoring (ODM); and (2) that the District
Court's finding of substantial compliance with the Revised Desegregation and
Education Plan was erroneous. We hold that the District Court did not err by failing
to require new written reports from the ODM, and that the District Court's findings
of fact are not clearly erroneous; thus, we affirm the grant of partial unitary status.

      Because the facts relevant to each issue on appeal are different, we address
them separately. In Part I, we address the issue of disqualification. In Part II, we
address whether the District Court should have required new written reports from the


      1
        This group of school children and parents are, as a practical matter, the
plaintiffs in the case at its present juncture. The Little Rock School District, which
actually initiated the case in 1982, is effectively the defendant for purposes of this
appeal.
      2
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.

                                         -2-
ODM. Finally, in Part III, we address whether the District Court erred in finding that
LRSD substantially complied with the Revised Plan in most respects.

                                          I.

       This litigation began in 1982 and has been in and out of this Court and the
District Court several times — it is complex to say the least. We briefly highlight the
events relevant to the issue of the disqualification of Judge Wilson.

       In 1987, LRSD and the Joshua Intervenors sought to disqualify Judge Henry
Woods,3 who was then presiding over the case. The parties asserted as grounds for
disqualification that during Judge Woods's private law practice, one of his partners
had represented parties who participated as amici curiae in a related case, and that
Judge Woods's impartiality was called into question by his comments at a meeting
with students. Judge Wilson, then in private practice, represented Judge Woods for
the limited purpose of the mandamus proceedings, defending Judge Woods's decision
not to recuse himself.4

       In the current proceeding, begun by LRSD's motion that it be released from
court supervision, the Joshua Intervenors sought the recusal of Judge Wilson under
28 U.S.C. § 455(b)(2), which requires a judge to disqualify himself "where in private
practice he served as lawyer in the matter in controversy." After Judge Wilson
entered an order on September 13, 2002, granting LRSD partial unitary status, the

      3
       The Little Rock School District sought a writ of mandamus asking this Court
to disqualify Judge Woods, and the Joshua Intervenors appealed a judgment entered
by Judge Woods, asserting, among other things, that the judge should be disqualified.
      4
        This Court found that Judge Woods was not disqualified. Little Rock Sch.
Dist. v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d 1296 (8th Cir. 1988); Little
Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 833 F.2d 112 (8th Cir.
1987).

                                         -3-
Intervenors filed a Motion for a Hearing Regarding the Relevance of 28 U.S.C. § 455
to the Present Proceedings. Judge Wilson denied this motion on October 29, 2002.
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 2002 WL 31465311
(E.D. Ark. 2002). Thereafter, on November 25, 2002, the Joshua Intervenors moved
for disqualification of Judge Wilson. Judge Wilson denied this motion because,
among other reasons, he had never served, in his view, as a lawyer in the "matter in
controversy." Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, No.
4:82CV00866 (E.D. Ark. Dec. 20, 2002). The Joshua Intervenors appeal.

      We must determine whether Judge Wilson's representation of Judge Woods in
the mandamus proceeding in 1987 involved the same "matter in controversy" as the
present questions before us for purposes of 28 U.S.C. § 455(b)(2). Because the
mandamus proceeding did not touch upon the merits of the case, we conclude that it
was not a part of the same "matter in controversy."

       The Joshua Intervenors contend that Judge Wilson's participation was part of
the same matter in controversy because it was part of a single case. The language
chosen by Congress, "matter in controversy," is not defined by the statute. However,
Congress easily could have substituted the word "case" for the words "matter in
controversy," but did not do so. This deliberate choice by Congress demonstrates an
intent that the words "matter in controversy" mean something other than what we
commonly refer to as a "case." In fact, Congress used the words "proceeding," "case
in controversy," and "subject matter in controversy" in various other subsections of
§ 455(b) to describe situations where a judge must disqualify himself. Thus, we must
assume that Congress ascribed a particular meaning to the words "matter in
controversy," and we must try to discern that meaning.

      We note that Judge Wilson represented Judge Woods at the mandamus
proceedings, which were given a separate docket number from the rest of the case in
this Court. This circumstance, though relevant, is not enough in itself to enable us

                                        -4-
to conclude that the disqualification proceeding was not the same "matter in
controversy" as the present appeal. As we have indicated, the phrase "matter in
controversy" must mean something other than the word "case," and so we do not rely
on this technical distinction. Instead, we look to the substance of the issues argued
and decided in the two proceedings.

      In Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 839 F.2d
1296 (8th Cir. 1988), we discussed, but did not decide, whether a matter in
controversy could extend beyond a single case. Even if a matter in controversy could
be more extensive than a single case, we concluded that the facts before us did not
support such a conclusion because the cases involved, "to a large extent, different
issues and different remedies." Id. at 1302. We think this reasoning is useful in
determining whether a matter in controversy may be less extensive than a case.

       Judge Wilson's representation of Judge Woods was restricted solely to the issue
of recusal and did not go to the merits of the case. Judge Wilson was involved in the
case solely for the mandamus proceedings and, in the course of his representation,
never addressed the merits of the case or expressed any opinion about them. The
issues before Judge Wilson in the present matter are wholly unrelated to his prior
representation of Judge Woods.

       Although the case law is slim in this area, we find support for our position in
In re Apex Oil Co., 981 F.2d 302 (8th Cir. 1992). In Apex Oil, Judge Loken found
his recusal unnecessary where he and his former law firm were previously involved
with plaintiffs' claim for damages from an oil spill and where, later, his law firm filed
claims on behalf of plaintiffs in Apex Oil's bankruptcy proceedings. Id. at 304-05.
The question was whether the plaintiffs' claim for damages constituted the same
matter in controversy as the later claims in bankruptcy when both resulted from the
same oil spill. Id. at 303. Although acknowledging that bankruptcy proceedings are
atypical because they are conducted under an umbrella proceeding, Judge Loken

                                          -5-
concluded that the cases were not "sufficiently related" so as to constitute the same
matter in controversy. Id. at 304. Applying this analysis to our situation, we
conclude that there is not a sufficient relationship between the recusal proceedings
with respect to Judge Woods and the issues now before us on the merits to make them
the same "matter in controversy." Nor do we think that any impartial observer could
reasonably think that Judge Wilson's impartiality should be called into question. Not
only was his prior representation of Judge Woods wholly distinct; the issues before
the Judge in the current proceeding involved the current version of the parties'
agreement to settle the underlying case, an agreement that was never before Judge
Woods, and that was not even in existence until long after he voluntarily relinquished
the case.

                                         II.

       As we have noted, this appeal arises from an interdistrict desegregation case
filed by LRSD in 1982. As part of that case, the parties agreed to a settlement plan
in 1989. However, as time passed, portions of that plan proved unworkable, and the
parties agreed to the Revised Desegregation and Education Plan. This plan was
approved by the District Court and this Court.

      On March 15, 2001, LRSD asked the District Court to declare it unitary under
§ 11 of the Revised Plan. On July 25, 2001, the Joshua Intervenors filed an
opposition to this request. The opposition, App. of Appellants 185-86, made the
following argument, among many others:

             The Joshua Intervenors believe further that the court must
             have before it a written response to the district's plan or
             other written analysis regarding that plan from the Court's
             Office of Desegregation Monitoring (ODM) before the
             Court can issue a final opinion regarding the matter.
             Otherwise, any assessment by the Court would be

                                         -6-
             incomplete and not keeping with the expectations of the
             Eighth Circuit Court of Appeals when it required the
             establishment of the ODM to assist the Court in
             determining and effectuating desegregation compliance.

       This opposition was filed while the case was still before Chief Judge Wright
(who had taken the case after Judge Woods had removed himself from it). She then
conducted five and one-half days of evidentiary hearings, ending on November 20,
2001. On January 3, 2002, Chief Judge Wright withdrew from the case, and it was
reassigned to Judge Wilson. He held three additional days of evidentiary hearings on
July 22, 23, and 24, 2002.

       The Joshua Intervenors' second major argument on appeal is that the District
Court erred in making findings and entering judgment without directing ODM to
prepare additional monitoring reports on LRSD's compliance with the Revised Plan.
The Joshua Intervenors point out that the ODM was created in the first place at the
direction of this Court. See Little Rock Sch. Dist. v. Pulaski County Special Sch.
Dist. No. 1, 921 F.2d 1371, 1388 (8th Cir. 1990).

       The District Court had before it some relevant materials from the ODM: a
report on LRSD's preparations for implementation of the Revised Plan, filed August
11, 1999, and a report of disciplinary sanctions in the Little Rock School District,
filed on June 14, 2000. As to the first report, the Court observed that it "indicated
that, overall, LRSD was doing a satisfactory job of implementing the Revised Plan."
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 237 F. Supp. 2d
988, 1048 (E.D. Ark. 2002). The District Court did not view the second report as
having much value. The Joshua Intervenors argue that the District Court should have
had the ODM prepare an additional report or reports before making any findings.
They point out that "ODM had gained considerable expertise, preparing at least 49
reports." Brief for Appellants 39.


                                        -7-
      In response, LRSD argues that this point was not properly raised in the District
Court. Certainly it is true that the Court never entered a written order expressly
disposing of the request that additional monitoring reports be prepared. Before the
case was transferred to Judge Wilson, however, Chief Judge Wright effectively
denied the Intervenors' request, saying:

             And of course, you are free, Mr. Walker, to call the Office
             of Desegregation Monitoring as witnesses, as well, I mean,
             those people as witnesses to the extent you think they have
             knowledge on the matters at issue. And furthermore, and
             I talked information with Ms. Marshall [the head of ODM]
             about this, I don't mind Ms. Marshall telling you, sharing
             with you the information that she has, but if she does that
             I want her to share it with everyone else too.

Tr. of June 29, 2001, 27-28. The Joshua Intervenors, in response to this invitation or
otherwise, did not call anybody from the ODM as a witness.

        As we have noted, the request that additional monitoring reports be required
was not the subject of a separate motion, but rather a matter mentioned, almost in
passing, in a pleading filed by the Joshua Intervenors. App. of Appellants 185-86.
As far as we can tell, the request was never renewed on the record, either in writing
or in open Court, during the days of evidentiary hearings conducted by Judge Wilson,
or in any other manner. We nevertheless assume for present purposes that the point
is properly before us, and we hold that it is without merit. The ODM, as the Joshua
Intervenors point out, was created at the direction of this Court, at the time of our
initial approval of the settlement agreement, but the ODM was to be under the
supervision of the District Court and to act as an arm of that Court in ensuring that
the settlement agreement was followed. It was and remains the job of the District
Court, in its discretion, to determine how the ODM should be used. A choice to rely
on the existing materials prepared by the ODM, and to eschew the preparation of


                                         -8-
additional reports, is certainly not an abuse of discretion. Two further points are
important. First, the Joshua Intervenors could have, but did not, call someone from
the ODM to testify. Second, no offer of proof was made. We do not know what
ODM's position would have been if it had been asked. In this situation, it is simply
impossible to say that the decision not to request the production of additional papers
had any effect on the outcome of this case.

                                         III.

      The Revised Plan "supersede[s] and extinguish[es] all prior agreements and
orders" in the case, with limited exceptions. App. of Appellants 87. Unlike the
previous settlement agreement, the Revised Plan contains a specific procedure by
which LRSD can attain unitary status. Section 11 of the Revised Plan provides:

             At the conclusion of the 2000-01 school year, the district
             court shall enter an order releasing LRSD from court
             supervision and finding the 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.

App. of Appellants 110.

       Although not required by § 11 of the Revised Plan, one year before the final
report required by § 11 was due, LRSD filed an interim report to demonstrate its
progress toward compliance. App. of Appellee 71. On March 15, 2001, as required
by the Revised Plan, LRSD filed its final report, which supplemented and updated the

                                         -9-
information provided in the interim report. App. of Appellee 245. The Joshua
Intervenors filed objections to this report on June 25, 2001, challenging LRSD's
substantial compliance with various sections of the Revised Plan. App. of Appellants
185.

       After holding evidentiary hearings on the Joshua Intervenors' objections, the
District Court issued an order granting LRSD partial unitary status. See Little Rock
Sch. Dist., 237 F. Supp. 2d 1086. The District Court denied LRSD unitary status
under § 2.7.1 of the Revised Plan, requiring LRSD to assess annually the academic
programs promulgated under § 2.7. Id. at 1081-82. LRSD has not cross-appealed the
District Court's ruling on § 2.7.1, and it is not before us. This issue remains pending
in the District Court.

      On appeal, the Joshua Intervenors argue that the District Court erred in
granting partial unitary status to LRSD. Specifically, the Joshua Intervenors
challenge the District Court's finding of substantial compliance with the following
sections: (1) § 2.1, Good Faith; (2) §§ 2.5-2.5.4, Student Discipline; (3) § 2.6,
Extracurricular Activities; and (4) §§ 2.6-2.6.2, Advanced Placement Classes.

       We review the District Court's findings of fact for clear error. See Nash Finch
Co. v. Rubloff Hastings, L.L.C., 341 F.3d 846, 850 (8th Cir. 2003). Thus, we must
affirm unless the findings are, in our opinion, clearly erroneous, which means that we
must have a "definite and firm conviction" that the District Court was mistaken. Ibid.
If "there are two permissible views of the evidence, the factfinder's choice between
them cannot be clearly erroneous." Id. at 851 (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 574 (1985)).

       We also note that the Joshua Intervenors bear the burden of proof. Under § 11
of the Revised Plan, "[a]ny party who challenges the Little Rock School District's
compliance bears the burden of proof." App. of Appellants 110. Section 11 of the

                                         -10-
Revised Plan also compelled the District Court to enter an order granting unitary
status to LRSD unless the Joshua Intervenors met this burden. Ibid. We hold that the
District Court did not clearly err in finding that the Joshua Intervenors had not met
their burden with respect to the four subject-matter areas on appeal. Thus, we affirm.

                                         A.

    The Joshua Intervenors appeal from the District Court's judgment granting
LRSD unitary status under § 2.1 of the Revised Plan, which provides:

             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
             the LRSD and to provide an equal educational opportunity
             for all students attending LRSD schools.

App. of Appellants 88. This section places an independent duty on LRSD to exercise
its "best efforts" and to act in "good faith" in attempting to remedy the effects of
discrimination.

       The Joshua Intervenors argue that LRSD did not act in good faith. As
evidence, they allege that Central High School is still functionally segregated,
although the building itself has been integrated. See Brief for Appellants 44-46.
Specifically, the Joshua Intervenors argue that the advanced-placement program
segregates students into different classrooms, which are the functional equivalent of
different schools. Ibid. Moreover, they assert that the teachers are assigned to
advanced-placement courses in a racially segregated manner—white teachers
teaching advanced-placement classes and African-American teachers teaching regular



                                        -11-
classes. Ibid. The Joshua Intervenors also suggest that segregation seeps outside of
the classroom and into extracurricular activities. Ibid.

       The obligation of good faith under § 2.1 of the Revised Plan is separate from,
and independent of, other affirmative obligations undertaken by LRSD pursuant to
§ 2 of the Revised Plan. Thus, it is possible for LRSD to have acted in good faith,
meeting its obligation under § 2.1, even though it did not meet other affirmative
obligations imposed by the Revised Plan.

       After the Revised Plan was adopted, the Little Rock School Board enacted
fifteen different policies related to its obligation of good faith and took steps to ensure
that all administrators and teachers were aware of these new policies. LRSD also
hired Dr. Terrence Roberts, Tr. of July 24, 2002, at 615-16, and Dr. Steven Ross, Tr.
of July 23, 2002, at 539, as desegregation experts. Dr. Roberts testified that he had
been actively involved in reviewing policies and procedures. Tr. of July 24, 2002, at
619-20. He also testified that he had developed training programs for teachers and
other staff members. Ibid. Dr. Roberts testified that he told the Board that LRSD had
directed much energy and effort toward meeting all the criteria in the Revised Plan and
that LRSD had the potential for being a model school district for the nation. Id. at
647. Dr. Roberts criticized LRSD for having a "compliance mentality" because some
individuals were interested only in meeting the requirements of the Revised Plan. Id.
at 630-31. However, as explained by the District Court, compliance was exactly the
issue at hand. LRSD was under constant scrutiny and had to be very careful that it met
its obligations. Little Rock Sch. Dist., 237 F. Supp. 2d at 1045.

       Under § 8.2 of the Revised Plan, a detailed procedure for addressing compliance
issues was established whereby the parties would attempt to solve compliance issues
before submitting them to the District Court for resolution. The Board paid the Joshua
Intervenors to monitor LRSD's compliance with the Revised Plan. During the term
of the Revised Plan, the Joshua Intervenors raised only five compliance issues, which

                                          -12-
were all resolved without resorting to the District Court. App. of Appellee 415. None
of the issues raised in opposition to the final report was previously raised by the
Joshua Intervenors. The District Court found that the purpose of the dispute
mechanism under § 8.2 was to avoid any surprises when LRSD filed the final report,
and that LRSD reasonably relied on the Joshua Intervenors to raise any problems in
a timely fashion. Little Rock Sch. Dist., 237 F. Supp. 2d at 1043. The District Court
also found that the interim report placed the Joshua Intervenors on notice of all the
problems, but they did not respond. Ibid. Although § 11 does not require that any
objections be previously raised under § 8.2, the District Court found that Intervenors'
failure to raise these issues was a factor to consider in deciding whether LRSD
substantially complied with the Revised Plan. Id. at 1043-44.

      For the reasons stated above, we find no clear error in the District Court's
finding of substantial compliance with § 2.1 of the Revised Plan.

                                         B.

      The Joshua Intervenors also appeal from the District Court's judgment granting
LRSD unitary status under §§ 2.5-2.5.4, relating to student discipline. Although
§§ 2.5.1-2.5.4 impose specific obligations with regard to discipline, the Joshua
Intervenors assert in particular that LRSD did not meet its obligation under § 2.5,
which provides:

             LRSD shall implement programs, policies and/or
             procedures designed to ensure that there is no racial
             discrimination with regard to student discipline.

App. of Appellants 90. This section requires LRSD to create and implement
programs and policies designed to eliminate discriminatory practices from student



                                        -13-
discipline. It does not require, however, that LRSD in fact absolutely eliminate racial
disparity from student discipline.

       The Joshua Intervenors argue that the District Court improperly found that
LRSD had substantially complied with § 2.5 because the Court misconstrued the
meaning of the words "to ensure." Brief for Appellants 40. Interpretation of the
Revised Plan is a question of law, which we review de novo, and we hold that the
District Court did not err in construing the obligation imposed by § 2.5.

        The Joshua Intervenors argue that "to ensure" means to make sure that racial
discrimination does not occur. Ibid. If "to ensure" were the only operative phrase in
the provision, the argument might be well taken. But § 2.5 does not require LRSD
to ensure anything. It merely requires that LRSD "implement programs, policies,
and/or procedures designed to ensure . . .." (Emphasis ours.) The thrust of the
provision is that certain programs with the purpose of ensuring that there is no racial
discrimination with regard to student discipline be instituted. This does not mean that
the programs must be perfectly efficacious. In addition, the object is to eradicate
discrimination, which is not necessarily the same thing as disparity. Racial disparity
may exist without discrimination. Discrimination, of course, can cause disparity, but
it is not the only possible cause.

       Disparity in discipline is a nation-wide problem. The District Court cited
something called "total suspension index." The total suspension index demonstrates
disparity in discipline and is calculated by dividing the percentage of African-
American students expelled or suspended by the percentage of African-American
students in the population, and comparing this number with that for white students.
The District Court found that LRSD's suspension index was between 1.25 - 1.31 for
the years 1997-2001. Little Rock Sch. Dist., 237 F. Supp. 2d at 1054. In other
words, to take 1997 as an example, African-American students were 1.25 times as
likely, so to speak, to be disciplined or suspended than white students. The national

                                         -14-
index for 1998 was 2.24, and the Arkansas index was 2.16. The District Court
specifically found that the Joshua Intervenors did not meet their burden of proving
that disproportionate discipline imposed on African-American students was the result
of discrimination. Little Rock Sch. Dist., 237 F. Supp. 2d at 1057. This finding is not
clearly erroneous.

       LRSD enacted several policies to implement its obligations regarding student
discipline and created a Compliance Plan, which outlined how LRSD planned to
implement the Revised Plan and who bore responsibility for such implementation.
Under the Compliance Plan, Junious Babbs was responsible for monitoring student
discipline. An ombudsman, James Washington, was appointed pursuant to § 2.5.3 to
ensure that students were treated fairly throughout the discipline process. The
ombudsman was charged with shepherding students through the discipline process,
including making students aware of the rules, acting as an advocate for students
involved in the disciplinary process, and investigating parental and student
complaints of discrimination.

       The interim and final reports issued by LRSD focused on the decrease in
overall suspensions and expulsions, due in part to programs developed by LRSD,
such as behavior modification programs and alternative learning centers. App. of
Appellee 85-87, 273-74.            Although the reduction in suspensions for
African-American students was not so large as that of white students, the District
Court found that the proportion of suspensions received by African-American
students remained the same. Little Rock Sch. Dist., 237 F. Supp. 2d at 1051. Neither
the interim report nor the final report focused on the fact that racial disparity existed
among the students who received suspensions or expulsions, and the District Court
found that LRSD could have sorted the data in such a way as to give a more
meaningful analysis. Id. at 1051-52. However, the District Court found that the
Joshua Intervenors had access to the raw data and never raised the issue. Id. at 1052.



                                          -15-
More specifically, the District Court found that the reports did not mislead the Joshua
Intervenors. Ibid.

       The ODM produced a Report on Disciplinary Sanctions in LRSD, which
showed that African-American students received a disproportionate number of
suspensions and expulsions. However, the District Court specifically found that this
report was not intended to address the effectiveness of any programs that were
instituted to address fairness in discipline. Id. at 1052-53. The District Court also
noted that the report suggested that factors outside of the schools might affect which
students receive discipline, such as home environment, family values, and whether
the home is a single-parent home. Id. at 1052. The report did not contain a specific
analysis of the facts of each suspension or expulsion to help determine whether
discrimination occurred. Id. at 1052-53. However, the report did conclude that the
racial disparity meant that LRSD "has certainly not eliminated nor even abated racial
discrimination in suspensions . . .." Id. at 1053 (quoting Report on Disciplinary
Sanctions in LRSD, June 14, 2000). The District Court rejected this conclusion as
speculative because it was based on raw statistics. Ibid.

       Dr. Linda Watson, the Assistant Superintendent for Student Hearings, was
responsible for monitoring compliance with the Student Handbook. She reviewed
every long-term suspension or expulsion and all appeals from short-term suspensions.
Tr. of Nov. 19, 2001, 36-37. If the procedures of the Student Handbook were not
followed, Dr. Watson overturned the punishment and removed it from the records.
Ibid. Although Dr. Watson acknowledged that African-American students were more
frequently suspended than white students, she believed this was due to the fact that
they more frequently engaged in conduct prohibited by the Student Handbook. Id.
at 83-84. She also testified that she believed this was due primarily to socioeconomic
factors. (Some of these factors may be caused by or related to racial discrimination,
but they are not the fault of the present administration of LRSD.) The District Court



                                         -16-
specifically found that the testimony of all the administrators involved in the
disciplinary process was credible. Little Rock Sch. Dist., 237 F. Supp. 2d at 1050.

      For these reasons, we find no clear error in the District Court's finding of
substantial compliance with § 2.5 of the Revised Plan.

                                           C.

      The Joshua Intervenors also appeal from the District Court's judgment granting
LRSD unitary status under §§ 2.6 and 2.6.3, relating to extracurricular activities.
Although § 2.6.3 imposes a specific obligation with regard to transportation for
extracurricular activities, the Joshua Intervenors assert that LRSD did not meet its
obligation under § 2.6, which provides:

             LRSD shall 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 . . ..

App. of Appellants 90-91.

       The Joshua Intervenors argue that racial discrimination occurred in
extracurricular activities, evidenced by the fact that many extracurricular activities
did not have a proportionate share of African-American participants. Brief for
Appellants 46. Certain activities' participants, such as tennis, swimming, quiz bowl,
mock trial, and cheerleading, were predominantly white. The Joshua Intervenors also
assert that there were barriers to participation, including costs of participation and
lack of transportation.

       The Joshua Intervenors argue that racial disparities in extracurricular activities
are the result of discrimination. However, as noted by the District Court, nothing in

                                          -17-
§ 2.6 of the Revised Plan required LRSD to impose quotas on extracurricular
activities. Little Rock Sch. Dist., 237 F. Supp. 2d at 1058. LRSD undertook to
promote the participation of African-American students and to eliminate barriers to
participation. As we noted above with respect to § 2.5, this provision does not make
LRSD an insurer. It requires only that the District "implement programs, policies
and/or procedures designed to promote participation and to ensure," et cetera.
(Emphasis ours.)

       The final report noted a marked increase in African-American students'
participation in extracurricular activities following the enactment of the new policies.
App. of Appellee 276-77. The final report also demonstrated that LRSD attempted
to eliminate barriers to participation by having buses transport students to and from
extracurricular activities. Id. at 278. Although the record does not establish which
students took advantage of the extra buses, the final report stated that "no
extracurricular activity transportation request made by an eligible student has been
denied." Ibid. As noted by the District Court, the Joshua Intervenors bore the burden
of proof on this issue, and they did not provide a single witness to testify that
African-American students were unable to participate because of a lack of
transportation. Little Rock Sch. Dist., 237 F. Supp. 2d at 1059.

       The Joshua Intervenors also assert that the costs of certain activities create a
barrier to participation. Although there are costs associated with certain activities,
Dr. Marian Lacey, Assistant Superintendent of Secondary Schools, testified that each
school had a discretionary fund which could be used to help students pay the costs of
extracurricular activities. Tr. of July 24, 2002, 775-76. The District Court also found
that the Joshua Intervenors presented no testimony that any student was denied an
opportunity to participate because of costs. Little Rock Sch. Dist., 237 F. Supp. 2d
at 1059-60.




                                         -18-
       The Joshua Intervenors asserted that certain schools, which were primarily
African-American, did not have the same extracurricular activities as other schools,
and that this violated LRSD's duty to promote participation. However, the District
Court found that each school determined which extracurricular activities to offer on
the basis of student interest, and if enough interest existed, each school offered a
stipend to sponsors of those activities. Id. at 1060. The District Court concluded that
certain activities were missing at certain schools not because of discrimination but
instead because of lack of student interest. Ibid.

       The Joshua Intervenors presented several students' testimony to support their
assertion that African-American students were not encouraged to participate or were
prevented from participating in extracurricular activities. The District Court did not
find this testimony impressive. Id. at 1061. Questions of credibility and inferences
to be drawn from facts must generally be left to the trial court.

       The Joshua Intervenors bore the burden of proving that LRSD was not
implementing programs, policies, or procedures designed to promote participation
and ensure there were no barriers to participation by qualified African-Americans in
extracurricular activities. We hold that the District Court did not err in determining
that the Joshua Intervenors failed to meet this burden.

                                          D.

       The Joshua Intervenors also appeal from the District Court's order granting
LRSD unitary status under §§ 2.6-2.6.2, relating to advanced-placement classes and
honors programs. While §§ 2.6.1 and 2.6.2 impose specific duties on LRSD to
provide training programs for teachers to identify and encourage qualified
African-American students to participate in advanced-placement programs and to
assist African-American students in being successful in advanced-placement



                                         -19-
programs, the Intervenors do not complain that these specific provisions were
violated. Instead, they focus on § 2.6, which imposes a more general duty:

             LRSD shall implement programs, policies and/or
             procedures designed to promote participation and to ensure
             there are no barriers to participation by qualified
             African-Americans in . . . advanced placement courses,
             honors and enriched courses and the gifted and talented
             program.

App. of Appellants 90-91. The phraseology of this provision is similar to others
discussed above.

       The Joshua Intervenors assert that the District Court erred in finding no barriers
to participation in advanced-placement courses. The low number of African-
American teachers assigned to advanced-placement courses, they say, is a barrier to
participation. Brief for Appellants 43-44. The Joshua Intervenors rely primarily on
the testimony of Dr. Michael Faucette, an English teacher at Central High School.
Dr. Faucette testified that although there were eight African-American teachers and
eight white teachers in Central High's English Department, African-American
teachers taught only a few of the advanced-placement sections. Tr. of July 22, 2002,
176-80. Dr. Faucette, an African-American teacher, did not teach any of the
advanced-placement sections. Id. at 177.

       The Little Rock School District Board created a regulation setting forth criteria
to help teachers identify African-American students for participation in
advanced-placement courses. Although this was one factor used in identifying
students for participation in advanced-placement courses, enrollment was still open
to any student who showed the proper level of motivation and commitment. App. of
Appellee 279. Teachers were then required to monitor performance and behavior to
ensure that students placed in those courses would remain there.

                                          -20-
       LRSD studied methods to increase enrollment in advanced-placement courses
and determined that pre-advanced-placement courses were necessary to prepare
students better and earlier. LRSD implemented pre-advanced-placement courses for
sixth and seventh-grade students. These programs have been highly successful, and
the District Court found that as a result of these programs, LRSD has added over 600
African-American students to its advanced-placement courses for juniors and seniors.
Little Rock Sch. Dist., 237 F. Supp. 2d at 1063.

      LRSD has also implemented the SMART Program, a summer program
designed to teach algebra to students to prepare them for algebra in the eighth grade.
App. of Appellee 112. The District Court found that during the term of the Revised
Plan, at least 95% of the students attending the SMART Program were
African-American. Little Rock Sch. Dist., 237 F. Supp. 2d at 1063. Evaluations of
the SMART Program determined that it was a success. Tr. of July 24, 2002, 678.

       LRSD also instituted a "Teachers of Color" program to increase the number of
African-American advanced-placement teachers. Id. at 671. The principal at each
middle school and high school determined who would be assigned to teach each class.
However, the principals were constrained by the collective-bargaining agreement,
which required consideration of a teacher's experience and seniority. Tr. of July 22,
2002, 90. An advanced-placement teacher also needed to be qualified through the
state.   Although Dr. Faucette testified about the racial composition of
advanced-placement teachers in Central High School's English Department, he did
not know about other advanced-placement sections at Central High School. Little
Rock Sch. Dist., 237 F. Supp. 2d at 1065. The District Court found Dr. Faucette's
testimony unreliable. Ibid.

      The Joshua Intervenors also point to racial disparity in the Hall High School
University Studies program, a program developed in conjunction with the University
of Arkansas at Little Rock that provided an opportunity for students to earn college

                                        -21-
credit for classes taken at Hall High School. Admission requirements were developed
by the University of Arkansas. Tr. of July 24, 2002, 727-28. In order to receive
college credit for the courses, students were required to pay tuition of approximately
$150 per course. Tr. of July 22, 2002, 114. The Joshua Intervenors assert that the
tuition payments created a barrier to participation for African-American students.
Brief for Appellants 42-43.

      The District Court found that during the 1999-2000 school year, 58% of the
students participating in Hall High School's University Studies Program were
African-American, while African-American students comprised 71% of all students
at Hall High School. Little Rock Sch. Dist., 237 F. Supp. 2d at 1066. During
2000-2001, only 35% of the students in the University Studies program were
African-American, while African-American students comprised 72% of all students
at Hall High School. Ibid. However, the Court found that the Joshua Intervenors
presented no evidence that any student was denied admission to the University
Studies Program because of inability to pay. Ibid. Testimony also indicates that the
school solicited a donation to cover the cost for at least one African-American student
who wished to participate but was unable to pay. Tr. of July 24, 2002, 802.

    For these reasons, we hold that the District Court did not err in finding that
LRSD substantially complied with its obligations under § 2.6 of the Revised Plan.

                             *    *    *      *   *    *

      The judgment is affirmed. It goes without saying, but we say it anyway, that
LRSD remains fully subject to the Constitution and all other applicable laws, and that
these obligations are enforceable by appropriate legal action.




                                           -22-
HEANEY, Circuit Judge, concurring.

       I concur in every aspect of the majority’s opinion except insofar as it holds that
the LRSD has implemented “programs, policies and/or procedures designed to ensure
that there is no racial discrimination with regard to student discipline,” as required by
section 2.5 of the Revised Plan. In my view, the LRSD has failed to meet this
obligation.

       It is true that the LRSD has implemented several programs with regard to
student discipline: the LRSD provided every student, parent, teacher, and
administrator with a copy of the Student Handbook; the LRSD trained students,
teachers, and administrators on provisions in the Handbook; the LRSD created the
position of Ombudsman to investigate student complaints of race-based mistreatment
in student discipline; Dr. Linda Watson, the Assistant Superintendent who was
responsible for implementing section 2.5 of the Revised Plan, reviewed every long-
term suspension and expulsion, and any short-term suspensions that were appealed;
Dr. Watson prepared and reviewed quarterly Discipline Management Reports from
each school, used these reports to identify problems, and met with the schools’
administrators to discuss solutions; the LRSD established alternative learning
environments to allow students with behavioral problems to remain in school; the
LRSD offered training in classroom management and effective discipline; and the
LRSD followed a progressive discipline approach by imposing lesser sanctions before
suspending students.

      It is also true that the LRSD has reduced the total number of disciplinary
sanctions of students during the time of the Revised Plan from 5,312 total sanctions
in 1998, to 5,080 total sanctions in 2001.5 During that same period, however, the


      5
     All 1998 statistics are from the LRSD’s 1998-1999 Annual Disciplinary
Management Report (Ct. Ex. CX679) and the 2001 statistics are from the LRSD’s

                                          -23-
number of black students receiving disciplinary sanctions actually increased. During
the 1998-99 school year, there were 4,470 disciplinary sanctions of black students
compared to 842 disciplinary sanctions of white students. Put another way, in the
first year of the Revised Plan, 65% of the student population in the LRSD was black,
while 84% of the disciplinary sanctions were of black students. By 2001, the year the
LRSD sought unitary status, the disparity was even greater. In the 2000-01 school
year, there were 4,534 disciplinary sanctions of black students compared to 546
disciplinary sanctions of white students. In other words, black students consisted of
68% of the student population, but accounted for 89% of the disciplinary sanctions.
Therefore, from 1998 to 2001, disciplinary sanctions of black students increased from
84% to 89%. It is undisputed that the programs instituted by the LRSD to address
disciplinary issues have had no positive impact on the racial disparity of student
discipline in the district.

       If you compare the discipline statistics in the individual high schools for the
same period they track in very similar ways with almost all of the schools
experiencing an increase in disparity. It is worth noting, however, that Parkview
High School, the most integrated high school in the district, has the lowest racial
disparity in student discipline in the district. In 1998-99, Parkview’s student
population was 51% black and the percentage of disciplinary sanctions of black
students was 49%. In 2000-01, Parkview’s black student population was still 51%,
but the percentage of disciplinary sanctions of black students rose to 66%. Even at
66%, however, Parkview still had the lowest disparity in student discipline in the
district that year.

       I agree that the Revised Plan does not require the LRSD to absolutely eliminate
racial disparity from student discipline. The majority and the district court, however,
rely heavily on the fact that section 2.5 requires the LRSD to implement programs


2000-2001 Annual Disciplinary Management Report (Ct. Ex. CX681).

                                         -24-
“designed to ensure” that there is no racial discrimination in student discipline. The
implication is that because the LRSD implemented programs which would effect
student discipline, the actual impact of those programs does not matter. I disagree.
It is not enough for the LRSD to list the programs it implemented to address the
disparity in student discipline, when the result of those programs was an increase in
the racial disparity in student discipline. The mere implementation of programs, no
matter how many or how impressive sounding, that have virtually no impact on the
racial disparity in student discipline is not enough to meet the district’s obligations
under the Revised Plan.

       This lack of impact on the disparity in discipline is really no surprise when you
review the testimony of Dr. Watson. Dr. Watson testified that: she was never
instructed that there needed to be a reduction in the racial impact of suspensions in
the district; she never prepared a monitoring report with regard to disparities in
discipline; she did not prepare any reports which track whether certain teachers or
administrators have a pattern of disciplinary actions based on race; nor did she
recommend any programs to address the continued disparate impact of discipline.
(Nov. 19, 2001, Unitary Status Hr’g Tr. at 25-163.) Dr. Watson also testified that the
percentage of black students being suspended did not decrease, that disparate patterns
of discipline still exist based on race, that there are no plans to reduce the disparate
impact of student discipline in the district, and that the LRSD is not even looking at
student discipline based on race. (Id.)

       The majority, and the district court, seem to take solace in the fact that racial
disparity in student discipline is a national problem. According to the district court,
in 1998, the national “total suspension index” was 2.24 and the Arkansas “total
suspension index” was 2.16, whereas the LRSD’s “total suspension index” remained
constant at 1.26 from 1997-2000. Little Rock Sch. Dist. v. Pulaski County Special
Sch. Dist. No. 1, 237 F.Supp. 2d 988, 1054 (E.D. Ark. 2002). The majority and the
district court consider the fact that the LRSD’s index is lower than that of the nation

                                         -25-
and the state significant, and the fact that the LRSD’s index did not change over the
period of the Revised Plan insignificant. I disagree. The Revised Plan said nothing
about the LRSD’s racial disparity in student discipline in comparison to the state or
the nation. The Revised Plan did, however, require the LRSD to implement programs
designed to ensure that the racial disparity in student discipline in the district would
decrease. This, they failed to do.

       The majority and the district court also assert that Joshua did not meet its
burden in proving that the racial disparity in student discipline was the result of
discrimination. This was not Joshua’s burden. According to section 11 of the
Revised Plan, Joshua bears the burden of proving that the LRSD failed to comply
with its obligations as set forth in the plan. Joshua met this burden by showing that
the programs the LRSD implemented to address the racial disparity in discipline were
ineffective. As I read the Revised Plan, it was the LRSD’s obligation to determine
whether the continued disparity in discipline was the result of racial discrimination
or merely socioeconomic factors as suggested by Dr. Watson. Here again, the LRSD
failed to meet its obligation and rested merely on the fact that it implemented
programs. Programs that, in the end, had no effect on the racial disparity in student
discipline.

       It is true that Joshua could have done more to raise concerns about the failure
of the LRSD’s programs earlier, but this does not remove all responsibility from the
LRSD. The statistics compiled and reports filed by the LRSD lack valuable data. I
have found no useful statistics on recidivism among students to determine how many
students, and of what race, are receiving multiple disciplinary sanctions. The record
does not contain statistics that separate offenses involving the discretionary judgment
of staff from objective offenses. The record lacks any reports which show whether
there is a correlation between the race of the teacher administering the discipline and
the race of the student receiving it, or whether certain teachers have a higher rate of
discipline than others. Dr. Watson testified that she was able to access some of this

                                         -26-
information and that she knew which schools had high rates of disciplinary sanctions
and which teachers issued more suspensions than others, but I cannot agree that her
personal, undocumented knowledge was sufficient to meet the court’s mandate that
the district implement programs, policies, and procedures designed to ensure that
there is no racial discrimination with respect to student discipline.

       Absent the necessary records, there is no way the district court, or this court,
can reach an informed conclusion as to whether blacks are disciplined more
frequently for legitimate reasons or because they are judged by different standards
than white students, at least by some teachers. I would remand this case to the district
court on the disciplinary issue, along with the issue of student achievement retained
by the district court, to require the district to comply with our original mandate.
                        ______________________________




                                         -27-
