Legal counsel repeatedly claims attorney-client privilege
Race-tinged turmoil in the relations between CCSD officials and West Las Vegas parents and their advocates — long simmering beneath the surface — has recently re-emerged publicly. And once again at the center of the turbulence are the district's actions — or inactions — regarding the educational plight of children attending the racially and economically segregated West Las Vegas Prime Six schools, now attended by as many students who are Latino as African-American.
Superintendent Jones and new CCSD school-board Trustees Erin Cranor, Lorraine Alderman and John Cole now find themselves in a situation similar to their district predecessors almost 40 years ago. Then, in 1972, the Ninth Circuit Court of Appeals upheld court-ordered desegregation of Clark County's elementary schools. While acknowledging that trustees and administrators were being "saddled with the mistakes of [their] predecessors," said the court, they remain "obligated to take effective steps to reverse the segregation trend, however drastic the cure may be."
However, if Jones and today's trustees are to accomplish genuine educational opportunity for the children of West Las Vegas, they will first have to overcome a deep-rooted CCSD culture that has institutionalized secrecy, deception and the continued perpetuation of public misinformation and half truths.
This is what a detailed examination of the district's record — recounted below — reveals.
In the early years of American desegregation litigation, case law established that school districts ordered to desegregate would remain under court jurisdiction until those districts achieved "unitary status" — that is, until they eliminated all vestiges of their previous racially segregated, or "dual," school system. Even then, such notices of unitary status sometimes still state performance obligations of the district and avenues of redress for plaintiffs if the stipulations are not met.
Has the Clark County School District, however, actually ever achieved unitary status? For those who want to understand the legal situation of Westside school students, that question is important. It bears significantly on whether CCSD's Prime Six desegregation plan is a genuinely voluntary legacy of a dissolved court order — or a mandatory plan that ultimately remains subject to court jurisdiction.
Clark County officials often refer to today's Prime Six Plan as a "voluntary" plan. Officials are also on record saying the district is no longer under court-ordered desegregation. An August 2009 Las Vegas Review-Journal article attributed CCSD's chief legal officer, Bill Hoffman, as saying the federal desegregation court order was "lifted" in 1997.
Despite such assertions, however, the actual legal status of CCSD's desegregation plan remains an open question — one that the district, as detailed more specifically below, refuses to clarify.
This question of legal status was touched on by Dr. Sonya Douglass Horsford, senior resident education scholar with the Lincy Institute at the University of Nevada, Las Vegas, in a 2008 white paper, "A History of School Desegregation in the Mississippi of the West: Implications for Educational Leaders." Horsford wrote that U.S. District Judge Bruce R. Thompson in 1977 had "determined the school board had complied with the Court's [desegregation] mandate, the decree had served its purpose, and terminated his jurisdiction of the case."
But did Thompson's order actually release the school district from any obligations? In Board of Education of Oklahoma City v. Dowell, 1991, the U.S. Supreme Court held that respondents, who did not appeal a 1977 "Order Terminating Case," were not barred from challenging the school board's later actions — a 1985 student assignment plan — because the District Court's 1977 order failed to "dissolve the desegregation order and the District Court's unitariness finding was too ambiguous to bar respondents from challenging later action by the Board." The Court noted that "nothing in that order indicated that the 1972 injunction itself was terminated."
While the Dowell court did not challenge the unitary status of the school district, it did discuss the differences between a unitary system, a school system that has operated desegregated schools for years, and achieving unitary status, the elimination of all vestiges of prior segregation. The court also noted "that a school board is entitled to a rather precise statement of its obligations under a desegregation decree. If such a decree is to be terminated or dissolved, respondents as well as the school board are entitled to a like statement from the court."
Like Horsford's description of Thompson's 1977 order, the 1977 Dowell order concluded, among other things, that the plan worked, substantial compliance with the constitutional requirements had been achieved, the school board operated the plan properly and jurisdiction was terminated. Yet the Supreme Court held that parents were not barred from bringing legal challenges against the school board.
Several long-time members of CCSD administrative staff share Horsford's belief. If correct, however, it could mean that the court order for bussing actually expired in 1977, and that it was district officials who, unilaterally, chose to continue mandatory bussing of West Las Vegas children for 11 of their 12 school years before eventually approving, under citizen pressure, the 1992 voluntary Prime Six Plan implementing school choice and equity.
Other Westsiders believe that the district was released from court jurisdiction in the early 1990s, as part of the resolution of a 1989 lawsuit against CCSD by the Las Vegas Alliance of Black School Educators (LVABSE).
Eva Simmons was a district educator from 1964 to 2001, has an elementary school named after her and is a vigorous advocate for the West Las Vegas community. She believes the district was granted unitary status around the time of the Prime Six Plan and that it had something to do with the LVABSE lawsuit.
If Simmons is correct, unitary status could have come about as part of a stipulation order or a settlement agreement that would have imposed obligations on the district as well as giving certain legal options to the plaintiffs.
Given the conflicting information on whether or not CCSD had ever achieved unitary status for its elementary schools, NPRI sought clarification from the school district under Nevada's open-records law.
"Could CCSD please clarify when and if it received ‘unitary status' for its elementary schools, including the Prime Six schools?" NPRI asked. "If CCSD has achieved unitary status, on what date did that occur. And, if there is any supporting documentation, a copy of such pursuant to NRS 239 would be greatly appreciated."
Rather than answering the question, or transmitting any supporting documents, the district responded with a statement by CCSD legal counsel Bill Hoffman: "This appears to be a request for a legal opinion, not a request for public records. As such, the request is denied."
Is the Clark County School District — notwithstanding what it tells Westside parents — viewing the entire Prime Six situation through a prism that is uniquely legal, rather than educational? Much evidence suggests this is the case.
In November 2008, when school board Trustee Carolyn Edwards pushed for a public discussion on, and recommendations for, Prime Six, both Superintendent Walt Rulffes and Hoffman informed trustees that Prime Six was an issue with significant legal implications.
After Rulffes explained that "there are all kinds of legal issues involved," Hoffman told trustees that "the question of Prime Six is really a review of the desegregation plan for the district" from the late 80s. Noting that the plan "came about as a result of lawsuits and there's a great deal of history," Hoffman recommended a closed legal briefing, which, he said "would then lead to the next question, ‘what are we going to do?'"
Responding to Edwards' request for a timeline, Rulffes replied:
It's not so much a time issue with staff. But we've found that some of the directions that we had planned to recommend simply didn't pass muster, legally. And I'm just afraid if we try to do a hurry-up recommendation we're gonna place the district at risk in terms of some kind of violation of the historical perspective of this from a legal standpoint...
Rulffes then wondered aloud whether the district needed to bring in Maree Sneed, the high-powered desegregation-litigation attorney. Hoffman informed trustees that, because the district had worked on the issue with Sneed previously, they weren't starting from "zero here." Still, Rulffes and Hoffman agreed that they were not at a point to move forward with recommendations.
NPRI asked to review any legal agreements or service agreements with Sneed or with her law firm, Hogan and Hartson. The district responded that "there is no written Legal Services Agreement with Maree Sneed or her law firm, Hogan and Hartson."
Yet another suggestion of a primarily legal focus by the school district came on Aug. 13, 2009, when CCSD presented trustees with a report by Dr. Gary Orfield of the University of California, Los Angeles, on the Prime Six schools. Remarkably, legal counsel Hoffman was the "contact person" on the agenda item — not Superintendent Rulffes.
When the results of Orfield's 2009 review were released publicly, several members of the West Las Vegas community, disconcerted, noted that Orfield failed to identify deficiencies in the Prime Six Plan or make recommendations to improve it.
Orfield responded that he did the study because it was a valuable "first step" and a "brave step" for the school district — "not because it was the solution."
However, when NPRI, this past January, sought to inspect the district's contracts with Orfield and his colleagues, the district replied that the consultants had actually been hired "in order to assist counsel for CCSD in anticipation of possible litigation" and that the contracts were "confidential attorney-client communications." (Emphasis added.)
Frank Hawkins, president of the local NAACP chapter, says possible litigation is news to him. "Litigation was never on the table," as far as he knew. "We have been working closely with the district for more than a year and a half - if not more than two years."
However, Orfield's report may suggest the district had a legal purpose in commissioning the Prime Six study — which would explain why Orfield didn't identify plan deficiencies and recommendations.
In his introduction, Orfield writes, "In spite of substantial investments over the years, the results have been disappointing. Because of this, the District took the unusual step of asking for an independent assessment of the area's trends in population, educational choice and educational success." (Emphasis added.)
Such an assessment could strengthen the district's legal position, if angry Westsiders were to go to court, charging CCSD had failed to fulfill pledges made to settle the original desegregation lawsuit. A 1998 article, "Recent Changes in School Desegregation," quotes a statement by Purdue Professor Brian L. Fife that the Dowell ruling held "that school districts are not responsible for remedying local conditions, such as segregated housing patterns."
The article's author, Dr. Jeanne Weiler — a research associate affiliated with the Institute for Urban and Minority Education at Columbia University's Teachers College — notes that under a June 1995 U.S. Supreme Court decision in Missouri v. Jenkins, desegregation plans do not need to continue "simply because minority student-achievement scores remained below the national average." She again quotes Fife, to the effect that, "The state could only be required to do what is practicable for remedying the vestiges of past discrimination; it was not responsible for remedying inequities that may exist between students within schools."
After the Court's June 1995 decision, the school district closed the Prime Six department.
Interestingly, it appears Orfield's published 2009 Prime Six study was not the totality of his research findings.
In a 2009 application by the school district for a federal TASAP — Technical Assistance for School Assignment Plans — grant, CCSD officials wrote, "In August 2009 an additional meeting was held to discuss specific findings identified in the independent assessment report." (Emphasis added.)
The TASAP application also revealed that over the summer, prior to release of the Prime Six study, Orfield and two other integration and educational equity experts had met with district top officials. The purpose was to discuss "some of the findings ... from the Prime Six Report (see appendices), [answer] questions from the Superintendent and staff regarding the information presented in the draft report, [engage] in a dialog about best practices for the education of students in areas of high poverty, and [develop] a plan to follow up the findings and recommendations in the report."
Included with the application was a copy of the team's unpublished draft "Theory of Action Plan."
When NPRI requested to inspect Orfield's "draft" report, the district acknowledged that a draft report existed, but refused the request, saying, "[Orfield's draft report] is a confidential attorney-client communications and work product under NRS Chapter 49, including NRS 49.095, and therefore need not be disclosed under NRS 239.010."