April 6, 2000

By Facsimile: 512-5643

The Honorable Fernando J. Gaitan, Jr.,

District Court Judge

United States District Court, Room 7552

United States Courthouse

400 E. Ninth Street

Kansas City, Missouri 64106

Re: Jenkins v. Missouri, No. 77-0420-CV-W-2

Dear Judge Gaitan:

This letter is pursuant to the request of your chambers made yesterday that counsel for the schoolchildren and the school district each set out the nature of their disagreement as to proposed qualitative assessments conducted each year in KCMSD schools.

Since the 1995-96 school year plaintiffs have conducted classroom observations in selected KCMSD schools. The purposes of the classroom observations have varied somewhat over the years but the last two sets of observations focused upon curriculum implementation, as well as other KCMSD educational plans necessarily intertwined with curriculum implementation. For instance, while improving classroom practices of teachers is not a separate educational plan, it is inextricably part of the KCMSD's new curriculum. That curriculum is to a great degree focused on students learning for themselves by means of hands-on projects and other means, just as the Missouri Department of Elementary and Secondary Education (DESE) urges through its curriculum frameworks and measures by its MAP - Missouri Assessment Program - tests. Thus, curriculum implementation necessarily includes observations of classroom practices by teachers.

Similarly, observations in classrooms note the extent to which KCMSD's teachers are using in-class and continuous assessment tools, and reacting to the assessment observations. For instance, such on-going assessment will inform a teacher as to whether a student understands the project she just completed and, if not, whether the teacher finds an alternative means for presenting the concept or coaching the student to discover the concept herself.

Finally, these observations are an indirect but powerful means of determining the extent to which KCMSD's professional development plan has been effectively implemented. The purpose, after all, of the professional development plan is to change fundamentally the way teachers teach in the classroom, i.e., to assist them in implementing the core curriculum, using the teaching practices required by the curriculum while continuously monitoring student mastery and understanding of the concepts.

These educational reform principles, which our observational assessments seek to measure qualitatively, are at the heart of KCMSD's educational plans. They were developed over the last three years pursuant to the 1997 Transition Plan, under the guidance of the Monitoring Committee, and in close parallel with the educational principles strongly encouraged by DESE. The fundamental premise is that they will, if effectively implemented, increase substantially student academic achievement over all. Equally fundamental, these educational reform principles are based on research that suggests them as the best means for closing the achievement gap between black and white students in urban public school systems. In fact, there is no other widely accepted educational reform measure for closing that gap. These are principles upon which DESE has grounded its Show-Me Standards, its Curriculum Frameworks, its MAP assessment tests, and its accreditation standards.

The classroom observations conducted each spring on behalf of the plaintiff schoolchildren are an important component of their on-going monitoring activities. These observations are the only broad-based and independent assessment of change in the classroom. The KCMSD has some observation reports from the Institute for Learning conducted earlier this year in a few KCMSD schools. Those reports, however, seem to have been focused primarily on literacy activities and were conducted by the Institute itself in schools in which the Institute was responsible for assisting in implementation of literacy reforms. Thus, plaintiffs' annual observations will be the only truly independent qualitative assessment of teaching in the KCMSD this year.

The DMC itself in 1998 commissioned a set of qualitative observations similar to plaintiffs', using guidelines similar to plaintiffs'. The resultant reports provided a wealth of information about classroom practices. Current reports now focused on the very educational reform practices that are the remaining obstacles to KCMSD achieving unitary status will be particularly informative. In addition, the observations have proved useful to the individual schools themselves. Without naming names of teachers, the reports provide guidance for principals and committees of teachers on how their efforts have been successful or not and where focused attention is needed to improve implementation of the District's educational plans. Thus, the reports not only provide valuable information on where the District is in its implementation efforts, it also helps the District move closer to the unitary status it seeks.

The KCMSD objects to the observations being conducted this spring and suggests that plaintiffs renew their request for such observations in the fall. The plaintiffs reject this for two reasons.

First, it is a matter of consistency. For the annual reports to measure progress in, for example, curriculum implementation, the observations need to be conducted every year and at the same time of year. Without the proposed observations, we would have no means to determine whether there had been progress this year in implementing the curriculum. If the observations were conducted in the fall, we would not know (1) whether there had been progress in curriculum implementation this year but a loss of progress over the summer, (2) whether there had been no progress, or (3) whether there had been no progress this year but substantial progress over the summer because of summer in-service programs for teachers. Thus, plaintiffs' monitoring in KCMSD schools has become and remains an important and valuable source of information because, in large part of the consistent manner in which the data are collected.

Second, it is a matter of the substance of what is observed. When the observations are conducted in the spring, the teachers know their students, have worked with them for seven months or more, and have developed a pattern or consistency in their teaching. The teachers have had much of the school year to adjust the manner in which they present the curriculum and to incorporate what changes have been urged upon them into their everyday teaching. On the other hand, observations conducted in September or October would yield little or no useful information, especially when compared to prior observations to measure progress. That early in the year, the teachers and students are new to each other and are still developing relationships. The professional development efforts for the year are still fragmentary. And, the data that would be obtained would likely understate the status of curriculum implementation in KCMSD schools.

For these reasons, we urge the Court to permit plaintiffs to conduct their annual monitoring activities in KCMSD schools this spring.

The second objection of the KCMSD is that the KCMSD should not have to pay the cost of this monitoring by plaintiffs as it has every year the observations have been conducted. Last year the cost came to $17,334.11. The KCMSD states that plaintiffs' counsel should pay the cost out of his pocket and then seek reimbursement after some subsequent unitary status hearing. This position is unreasonable, not in accordance with consistent practice in this case, and would be contrary to applicable law governing fees in such cases.

First, plaintiffs are the prevailing parties in this case with a duty and an obligation to monitor the implementation of remedies ordered for their benefit. The KCMSD is the constitutional violator. It has the obligation of implementing ordered remedies, of cooperating with monitoring activities, and of paying for those activities. There is no logical reason why plaintiffs' counsel - since the plaintiff schoolchildren themselves surely cannot pay - must personally bear the cost of monitoring the defendant's discharge of their court-ordered duties.

Second, originally the State of Missouri, and more recently the KCMSD, have each in their turn been required to pay the cost of the annual in-school monitoring activities commissioned by counsel on behalf of the plaintiff schoolchildren. Now that the State is now longer a party to the case, as a result of the KCMSD's decision to settle with the State defendants, the KCMSD knowingly assumed the responsibility for paying the fees and expenses of all activities reasonably necessary for plaintiffs to discharge their monitoring and enforcement obligations.

It is not a defense for non-payment that these monitoring activities might also prove useful to plaintiffs in a subsequent unitary status hearing. That argument has been made and lost before in this case. In late 1996, as a unitary status hearing in January, 1997 was approaching, plaintiffs' counsel incurred substantial expenses and devoted large amounts of time to preparation for the hearing, including in-school observations in late November, 1996 for the express purpose of up-dating the annual observations from the spring of 1999 for use in trial. When plaintiffs made their quarterly fee application in early January, 1997, the State objected on the ground that the work was for use in trial and that payment should await the outcome of that trial. Judge Clark rejected that argument and, in an order dated January 27, 1997, held that

…much of the work done in preparation for matters concerning unitary status also relate to plaintiffs' fully compensable monitoring activities. Much of the research and studies done by plaintiffs examine the existence of the vestiges of past discrimination in the KCMSD. The Court finds that these activities fall within plaintiffs' reasonable monitoring activities.

Order of January 27, 1997 at 2 (Document number 4400). The same principle applies at this time. The monitoring the plaintiffs seek to perform, while perhaps useful when and if the KCMSD files a motion for unitary status, is still monitoring that is useful, reasonable, and even necessary at this time, and the KCMSD should pay for it, not plaintiffs' counsel.

Third, while the issue has not yet been reached in this case, at some point in time unitary status will be declared. All parties agree that the sooner such a declaration is earned, the better for all, including especially the schoolchildren who will at last have obtained the full benefits of the remedies permitted to them as prevailing parties under the law. At that fortunate point of time, it may well be that the school district will have prevailed after a trial, and perhaps an appeal, on unitary status issues. The schoolchildren, having fully achieved the benefits of their remedy will have prevailed in the litigation to the fullest extent permissible. Even then, counsel for plaintiffs will be entitled to recover the fees and expenses incurred in the last stages of the litigation. Plaintiffs will remain prevailing parties until the litigation is concluded and they will be entitled to compensation for all reasonable time and expenses incurred on behalf of the prevailing parties. To hold otherwise would be irrational. It would result in a nonsensical outcome for the completely prevailing plaintiffs. All other participants in the case, from counsel for the constitutional violator to the copy service operators, would be fully paid for their troubles. The sole exception would be counsel for the victorious schoolchildren who would have to bear hundreds of thousands of dollars in unitary status time and expenses in a case in which his clients received the fullest measure of remedy to which they are entitled. That does not make sense and it is not the law in any unitary status case but it is the outcome of the logic advanced now by the KCMSD for avoiding payment for the monitoring activities of plaintiffs.

For all these reasons, plaintiffs respectively request this Court to require the KCMSD to permit plaintiffs to engage, at the KCMSD's expense, this spring in their annual in-school qualitative assessments of the KCMSD's progress toward meeting its court-ordered remedial obligations.

Respectfully submitted,

Arthur Benson

Attorney for Plaintiffs

/AB

cc: Mr. Charles Brown

Mr. Mark Thornhill

Mr. Brian Wood

Ms. Lisa Weatherspoon