                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 07-1866
                                 ___________

Little Rock School District,            *
                                        *
             Plaintiff/Appellee,        *
                                        *
Lorene Joshua, Leslie Joshua, Stacy     *
Joshua, Wayne Joshua,                   *
                                        *
             Intervenor Plaintiffs/     *
             Appellants,                *
                                        *   Appeal from the United States
       v.                               *   District Court for the
                                        *   Eastern District of Arkansas.
North Little Rock School District;      *
Pulaski County Special School District; *
State of Arkansas,                      *
                                        *
             Defendants.                *
       _______________________          *
                                        *
Dale Charles; Robert L. Brown, Sr.;     *
Gwen Hevey Jackson; Diane Davis;        *
Raymond Frazier,                        *
                                        *
             Plaintiffs,                *
                                        *
       v.                               *
                                        *
Pulaski County Board of Education;      *
Patricia Gee, Individually and in her   *
Official Capacity as a Member of the    *
Board of Education of the Little Rock *
School District, A Public Body; George *
Cannon, Dr. Individually and in his       *
Official Capacity as a Member of the      *
Board of Education of the Little Rock *
School District, A Public Body;           *
Katherine Mitchell, Dr., Individually     *
and in her Official Capacity as a         *
Member of the Board of Education of *
the Little Rock School District, A Public *
Body; W. D. Hamilton, Individually and *
in his Official Capacity as a Member of *
the Board of Education of the Little      *
Rock School District, A Public Body, *
also known as Bill Hamilton; Cecil        *
Bailey, Individually and in his Official *
Capacity as a Member of the Pulaski       *
County Board of Education, a Public       *
Corporate; Thomas Broughton,              *
Individually and in his Official Capacity *
as a member of the Pulaski County         *
Board of Education, a Public Corporate; *
Martin Zoldessy, Dr., Individually and *
in his Official Capacity as a member of *
the Pulaski County Board of Education, *
a Public Corporate,                       *
                                          *
              Defendants.                 *
       _______________________            *
                                          *
State of Arkansas,                        *
                                          *
              Amicus on Behalf of         *
              Appellee.                   *
                                    ___________

                           Submitted: March 13, 2008
                              Filed: April 2, 2009
                               ___________


                                      -2-
Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       This case is once again before us, this time by way of an appeal by the
intervenor plaintiffs (Joshua) from the district court’s1 order declaring the Little Rock
School District (LRSD) unitary. Little Rock Sch. Dist. v. Pulaski County Special Sch.
Dist. No. 1, 2007 WL 624054 (E.D. Ark. 2007) (hereinafter referred to as LRSD III).
We affirm.

                                           I.

       On September 13, 2002, the district court granted LRSD partial unitary status.
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 237 F. Supp. 2d 988, 1077
(E.D. Ark. 2002). That order required LRSD to assess and evaluate the key programs
set forth in § 2.7 of the Revised Desegregation and Education Plan (Revised Plan) that
the district court had approved in 1998.

       On June 30, 2004, the district court entered an order denying LRSD’s request
for a declaration of unitary status. Little Rock Sch. Dist. v. Pulaski County Special
Sch. Dist. No. 1, 470 F. Supp. 2d 963 (E.D. Ark. 2004).

       We affirmed that decision in Little Rock School District v. North Little Rock,
School District, 451 F.3d 528 (8th Cir. 2006). In recounting the lengthy history of this
case, id. at 529, we questioned what we perceived to be the additional requirements
that the district court had imposed in its 2002 Compliance Order, id. at 536, and what
we characterized as the even more heightened requirements imposed by the district


      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.

                                          -3-
court in its 2004 order, the details of which we set forth at some length. Id. at 536-40.
2
  Despite our concerns, we concluded that the district court had not clearly erred in
finding that LRSD had failed to demonstrate substantial compliance with the Revised
Plan. Id. at 540. In the course of our opinion, we commented on how this litigation
had been complicated by the shifting terminology employed by the parties and the
district court, especially with respect to the terms “assessment” and “evaluation” as
used in determining whether LRSD had satisfied the requirements of § 2.7.1 of the
Revised Plan. Id. at 531. We concluded our analysis by saying that in light of
LRSD’s representation that it was complying with the new compliance remedy,

      [w]e are unwilling at this time to say that those heightened requirements
      surpass beyond all measure the requirements to which LRSD committed
      itself when it entered into the 1989 Settlement. Suffice it to say that
      there will be time enough for us to revisit the requirements of the 2004
      order if this case should once again come before us.


Id. at 540.

       Although concurring in our affirmance of the district court’s finding that LRSD
had not substantially complied with § 2.7.1 of the Revised Plan as embodied in the
2002 Remedy, Judge Gruender dissented from our judgment because of his belief that
the district court had abused its discretion in imposing the 2004 Remedy. Id. at 541
(Gruender, J., concurring in part and dissenting in part).




      2
         For a thorough, thought-provoking account of the history of the efforts to
integrate the schools within the City of Little Rock and Pulaski County, Arkansas, see
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 584 F. Supp. 328
(E.D. Ark. 1984) (Woods, J.). For the history of the litigation that ultimately resulted
in the lawsuit that is before us today, see Little Rock Sch. Dist. v. Pulaski County Sch.
Dist. No. 1, 778 F.2d 404 (8th Cir. 1985) (en banc).

                                          -4-
       Specifically, Judge Gruender concluded that the district court had abused its
discretion in substituting “a new set of rigorous evaluations not agreed to by the
parties,” id. at 542, in ordering a new team for LRSD’s Program Review and
Evaluation Department, and in introducing the requirement that LRSD’s “program
assessment process must be deeply embedded as a permanent part of LRSD’s
curriculum and instruction program.” Id. (quoting the district court’s 2004 order).
Judge Gruender characterized the “deeply embedded” requirement as being
“impossibly subjective” and as having been “created out of whole cloth.” Id. at 543.
He would have supplanted that standard by requiring the district court on remand to
analyze the evaluations called for by the 2004 Remedy under the standards set forth
in the 2002 Remedy. Id.

                                          II.

        On remand from our 2006 decision, the district court conducted a three-day
evidentiary status hearing in January 2007. LRSD called fifteen witnesses, who
testified about LRSD’s substantial compliance with § 2.7.1 of the Revised Plan.
Joshua called nineteen witnesses, who testified that LRSD needed to do more still in
order to comply with its obligations. As noted by the district court, the parties
introduced into evidence thousands of pages of exhibits.

       Before reaching the merits of the question whether LRSD had substantially
complied with the requirements of § 2.7.1, the district court explained at some length
how it believed both the majority and the dissent in our 2006 decision had
“erroneously construed § 2.7.1 as requiring LRSD to perform program only
assessments–not evaluation–of the § 2.7 programs.” LRSD III, 2007 WL 624054, at
*6, n.38. The district court disagreed with our suggestion that this litigation had been
complicated by what we characterized as the shifting terminology used by the parties
and the district court with respect to “assessment,” “evaluation,” and other terms. Id.
at *6.

                                          -5-
        In contrast to its disagreement with our characterization of what its earlier
orders had required, the district court agreed with Judge Gruender’s conclusion that
the requirement that LRSD deeply embed its program assessment process as a part of
its curriculum and instruction program imposed a new contractual obligation that was
not contained in § 2.7.1 of the Revised Plan, saying, “Upon mature reflection, I
wholeheartedly agree with the dissent’s criticism of my decision to require LRSD to
‘deeply embed’ the program assessment process as a permanent part of its curriculum
and instruction program.” Id. at *7. The district court then acknowledged that it
should have adopted the “good faith” compliance standard imposed under § 2.1 rather
than crafting a “deeply embedded” compliance standard out of whole cloth:

      The language I should have used in section B, rather than the “deeply
      embedded” standard, is as follows: LRSD must act in good faith (as
      explicitly required by § 2.1 of the Revised Plan) to implement the
      program assessment process required by § 2.7.1 of the Revised Plan. In
      the Findings of Fact, I will use this “good faith” compliance standard to
      determine whether LRSD has substantially complied with section B of
      the 2004 Compliance Remedy, rather than the “deeply embedded”
      compliance standard contained in the June 2004 Decision.


Id. at *8 (footnote omitted).

       The district court conducted a painstaking review of the evidence and testimony
submitted at the January 2007 unitary status hearing and then entered detailed findings
that LRSD had substantially complied with each of the requirements set forth in the
2004 Compliance Remedy and all of the obligations contained in the Revised Plan.
Accordingly, the district court ordered that LRSD be declared completely unitary in
all respects of its operations and released it from all further supervision and
monitoring from the court, the Office of Desegregation Monitoring, and Joshua.




                                         -6-
                                          III.

                                           A.

      We conclude that there is no need for us to engage in a lengthy, detailed
recounting of the evidence submitted at the January 2007 unitary status hearing.
Suffice it to say that, having carefully reviewed the testimony and evidence presented
by the witnesses for both parties, we are in complete agreement with the district
court’s analysis of that testimony and evidence and conclude that the district court did
not clearly err in finding that LRSD had substantially complied with all of the
obligations imposed upon it by the 2004 Compliance Remedy and the Revised Plan.
During the course of our review, we found ourselves in agreement with the district
court’s observations, as set forth in greater detail below, that Joshua failed to present
any evidence in support of its challenges to the sufficiency of LRSD’s compliance
with several of the requirements of the 2004 Compliance Remedy.

                                           B.

       There remains for decision Joshua’s contention that by receding from the
“deeply embedded” program assessment requirement that it imposed in its 2004
compliance remedy, the district court departed from the law of the case established in
that order and affirmed by our 2006 decision. Joshua complains that it was never
given notice or an opportunity to contest the changed compliance standard.

      As we recently observed,

            The law-of-the case doctrine has been described as a means to
      prevent the relitigation of a settled issue in a case. United States v.
      Bartsh, 69 F.3d 864, 866 (8th Cir. 1995). The doctrine “requires courts
      to adhere to decisions made in earlier proceedings in order to ensure
      uniformity of decisions, protect the expectations of the parties, and

                                          -7-
      promote judicial economy.” Id. In other words, the doctrine “‘posits
      that when a court decides upon a rule of law, that decision should
      continue to govern the same issues in subsequent stages in the same
      case.’” United States v. Carter, 490 F.3d 641, 644 (8th Cir. 2007)
      (quoting Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 75
      L.Ed.2d 318 (1983)).


Gander Mountain Co. v. Cabela’s, Inc., 540 F.3d 827, 830 (8th Cir. 2008). See also
First Union Nat. Bank v. Pictet Overseas Trust, 477 F.3d 616, 620 (8th Cir. 2007).

       We conclude that the doctrine is inapplicable in the context of this litigation.
First, far from constituting a ringing endorsement and affirmance of the “deeply
embedded” requirement imposed by the district court’s 2004 order, our 2006 decision
was at most a reluctant, tepid, grudging recognition of the fact that the district court
had seen fit in the context of its continuing oversight of the 1998 Remedy to make
even clearer to LRSD the importance of taking steps to ensure that the key
requirements of § 2.7.1 would be complied with. Our 2006 decision was not a clear
holding that the “deeply embedded” requirement was an immutable standard that
LRSD was required to satisfy. Our decision to reserve the right to revisit the
requirements of the 2004 order if the case should once again come before us was a
clear indication that the “deeply embedded” requirement was neither a settled matter
nor our final word on the issue.

        This lawsuit has been before the district court (in the person of at least three
different district judges) for more than a quarter of a century. Judge Wilson has had
supervisory authority over the case for more than five years. He has conducted
numerous hearings and has entered lengthy orders regarding the elements of the
remedial plan that LRSD has been obligated to comply with. It is the continuing
nature of the district court’s ongoing supervision that distinguishes this case from
litigation between private parties that typically involves discrete, temporally fixed
issues of fact and law. We believe that what the Supreme Court said in Arizona v.

                                          -8-
California illustrates why rigid adherence to law-of-the-case principles is not
warranted in the case before us:

      [L]aw of the case doctrine was understandably crafted with the course of
      ordinary litigation in mind. Such litigation proceeds through preliminary
      stages, generally matures at trial, and produces a judgment, to which,
      after appeal, the binding finality of res judicata and collateral estoppel
      will attach.


460 U.S. 605, 618-19 (1983).

        To extrapolate and superimpose wholesale law of the case doctrine onto the
district court’s authority to oversee and enforce a complex, highly detailed settlement
agreement that attempts to remediate more than a century of segregated educational
facilities “would weaken to an intolerable extent” the district court’s ability to exercise
its equitable powers to accomplish the duty with which it was charged to ensure that
that remedial plan is being complied with. Id. at 619. In light of the district court’s
ongoing supervision of the case, we believe that none of the parties to this litigation
could have had the same settled expectations regarding the manner and detail in which
the district court was to monitor and enforce the orders it had entered that parties in
typical private litigation may well have had.

       In addition, we believe that the district court’s careful review of the evidence
submitted at the January 2007 hearing reflected what in effect was the functional
equivalent of a finding that the “deeply embedded” requirement had been satisfied.
For example, after reviewing the testimony of certain of LRSD’s witnesses, the
district court observed:

           Dr. Roberts, Dr. Williams, and Mr. Kurrus all testified at length
      about why they believed LRSD had “deeply embedded” the
      comprehensive program assessment process in Regulation IL-R as a

                                           -9-
      permanent part of its curriculum. I have already explained why I should
      not have used such a subjective standard to determine whether LRSD
      had met its compliance obligations. Nevertheless, after hearing
      everything that has been done to make the comprehensive program
      assessment process a permanent part of LRSD’s curriculum, as explained
      by Drs. Roberts, Williams, and Mr. Kurrus, I believe it would be hard to
      find that it has not been “deeply embedded.”


LRSD III, 2007 WL 624054, at *15.

      Again, in commenting on LRSD’s efforts to comply with the program
assessment requirement of the 2004 Compliance Remedy, the district court stated:

             I find that LRSD’s administrators have substantially complied
      with their obligations in section B of the 2004 Compliance Remedy by
      implementing a comprehensive program assessment process as a
      permanent part of LRSD’s curriculum. I further find that, in
      implementing the comprehensive program assessment process, LRSD
      has acted in good faith.

            LRSD has gone the extra mile to ensure that its program
      assessment process is and will continue to be a permanent part of its
      curriculum. I would be hard pressed not to conclude that LRSD has not
      “deeply embedded” that process as a permanent part of its curriculum,
      although this standard is now abandoned.


Id. at *18-19.

      True enough, the district court noted that because it had struck the “deeply
embedded” requirement as being too subjective, the opinions of LRSD’s board
members on that issue were rendered irrelevant. Id. at *24. Nevertheless, the overall
tenor of the district court’s careful, step-by-step, program-by-program review of
LRSD’s efforts to comply with the 2004 Remedy satisfies us that Joshua has not

                                        -10-
demonstrated that the district court’s application of the good faith standard of review
resulted in any prejudice to it. As the district court several times noted in its order,
Joshua failed to present any evidence in support of its challenges to certain aspects of
LRSD’s program evaluations:

             In Joshua’s November 15, 2006 Objections to LRSD’s
      Compliance Report, the only challenge it makes to any of the eight
      program evaluations is in paragraph 5, which contains the following
      cryptic statement: “[T]he evaluations of the Read 180 program and the
      21st Century Community Learning Centers program contain insufficient
      descriptions of the program being evaluated to meet LRSD’s own
      standards and the Court’s Order.” To the extent that Joshua was serious
      about challenging sufficiency of how these two programs were
      described, they failed to present any evidence to support this argument
      during the January 2007 unitary status hearing. Accordingly, I find that
      LRSD has substantially complied with all of its obligations under section
      C of the 2004 Compliance Remedy.


Id. at *20 (footnotes omitted).

      I find that Dr. Ross and Dr. Catterall performed all of the record keeping
      obligations required in section E of the 2004 Compliance Remedy. In
      addition, during the January 2007 unitary status hearing, Joshua did not
      offer any arguments or testimony directed at challenging the obligations
      imposed under this section of the remedy.

      ....

      Finally, during the January 2007 unitary status hearing, Joshua did not
      offer any evidence challenging LRSD’s compliance with any of the
      obligations in . . . section [F] of the remedy.


Id. at *21.


                                         -11-
      Accordingly, we conclude that the district court did no disservice to Joshua by
concluding that a showing by LRSD of its good faith compliance with the 2004
Compliance Remedy and the 1998 Revised Plan was sufficient to ensure that the long-
range goals of that Remedy and Plan would be accomplished.

       As a measure of its confidence that those goals would be accomplished, the
district court stated:

             All seven Board members agreed that improving the academic
      achievement of African-American students is of great importance, and
      that the District will need to continue to implement, assess, and evaluate
      § 2.7 programs for the foreseeable future. They support Regulation IL-R
      and believe that it must be made a permanent part of LRSD’s curriculum.
      They believe [the Planning, Research, and Evaluation Department] plays
      a crucial role in overseeing the implementation, assessment, and
      evaluation of § 2.7 programs. By finding common ground on these four
      important priorities, I am optimistic that the Board will continue to
      ensure that the comprehensive program assessment process remains a
      permanent part of LRSD’s curriculum for as long as it takes to improve
      the academic achievement of African-American students.


Id. at *25.

                                         IV.

       In bringing this litigation to a close, we deem it appropriate to set forth the
district court’s concluding comments:

      Nine years after executing the March 15, 1998 Revised Plan, LRSD
      finally has achieved unitary status by substantially complying with all of
      the obligations contained in that document. This means that LRSD is no
      longer under any supervision and monitoring obligations from me,
      ODM, or Joshua. LRSD’s Board can now operate the district as it sees

                                        -12-
      fit; answerable to no one except LRSD’s students and patrons and the
      voters who elected them to office. While the road has been long and at
      times frustrating–for LRSD and for me–I want to express my heartfelt
      best wishes as LRSD begins to operate, as our Founders intended, under
      control of the citizens of the City of Little Rock.


Id. at *25.

       In joining in those comments, we express our appreciation to the district court,
as well as to the predecessor courts, for the untiring, unflagging efforts that have
resulted in LRSD’s compliance with the requirements of the 1998 Revised Plan.

        The judgment declaring the Little Rock School District to be completely unitary
is affirmed.

GRUENDER, Circuit Judge, concurring.

      As I explained in my dissent in Little Rock School District v. North Little Rock
School District, I believe that the district court abused its discretion in imposing the
2004 Compliance Remedy by creating a new requirement that the program assessment
process be “deeply embedded.” 451 F.3d at 541. While I appreciate the district
court’s willingness to reconsider its prior decision and adopt the position that I
advocated in my dissent, I am not convinced that the law-of-the-case doctrine may be
so easily set aside. However, because the district court effectively found that the
“deeply embedded” requirement was satisfied, I concur.

       As the Court correctly notes, the law-of-the-case doctrine is a “means to prevent
the relitigation of a settled issue in a case.” Gander Mountain Co., 540 F.3d at 830.
“Accordingly, we will reconsider a previously decided issue only if substantially
different evidence is subsequently introduced or the decision is clearly erroneous and


                                         -13-
works manifest injustice.” Little Earth of the United Tribes, Inc. v. U.S. Dep’t of
Hous. & Urban Dev., 807 F.2d 1433, 1441 (8th Cir. 1986). Even if the Court’s earlier
decision was “at most a reluctant, tepid, [and] grudging,” affirmance of the “deeply
embedded” requirement imposed by the district court’s 2004 Compliance Remedy,
ante at 8, I find no support for such an exception to the law-of-the-case doctrine. Nor
do I find support for an exception to the doctrine arising from a “district court’s
authority to oversee and enforce a complex, highly detailed settlement agreement.”
Ante at 9. Therefore, I find that the law-of-the-case doctrine prevents us from simply
affirming the district court’s opinion in its entirety.

       Nevertheless, I would affirm the district court’s decision because, upon
reviewing the evidence submitted at the January 2007 hearing, the district court
effectively found that the “deeply embedded” requirement had been met. Therefore,
I concur in that part of the Court’s opinion holding that the district court’s application
of the good faith standard of review did not result in any prejudice to Joshua and in
the Court’s judgment declaring that the Little Rock School District is completely
unitary.
                                ____________________




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