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Hope School District’s Public School Choice Act Exemption Affirmed

By Dale Gathright, Jr., 01/3/21 9:53 AM

 

ST. LOUIS, MISSOURI – The rights of the Hope School District, and three other south Arkansas districts, including Lafayette County, Junction City and Camden Fairview, to not participate in interdistrict student transfers because of decades-old federal school desegregation mandates they are involved in was upheld last week (12/31/20) by a panel of the 8th U.S. Circuit Court of Appeals.

Hope and the other districts had sought modification of existing desegregation consent decrees to allow their exemption from Arkansas’s Public School Choice. The Honorable Susan O. Hickey, United States District Judge for the Western District of Arkansas, had granted the Districts’ motions and modified the consent decrees to explicitly limit the transfer of students between school districts. The Arkansas Department of Education appealed, alleging that the modification imposed an impermissible interdistrict remedy.

“Because there was a substantial change in Arkansas law after the consent decrees were enacted and the district court’s modification was not an impermissible interdistrict remedy, we affirm,” the panel’s ruling stated.

Hope School District entered an intradistrict consent decree in 1990 to “remedy any past discrimination based upon race” and “prevent any like discrimination from occurring in the future.” The consent decree enjoins Hope from “engaging in any policies, practices, customs or usages of racial discrimination” in any school operations. Hope must “maintain a unitary, racially nondiscriminatory school system wherein all schools are effectively and equitably desegregated and integrated.”

In 1993, Lewisville School District entered into an intradistrict consent decree that now binds Lafayette County School District. The consent decree prohibits Lafayette County “from allowing a racially discriminatory
environment to exist within the school district” and requires the district to “maintain a unitary, racially non-discriminatory school system wherein all schools are effectively and equitably desegregated and integrated.” Lafayette County must also maintain a desegregation and integration policy that “promotes pupil and staff integration rather than . . . passive acceptance of desegregation between students of all races.”

The district court retained jurisdiction over all four cases to ensure “compliance with the spirit and terms of” the decrees and to enforce its orders.

In 1989, Arkansas adopted the Arkansas School Choice Act of 1989, which allowed children to apply to attend a nonresident school district. The 1989 Act limited a student’s ability to “transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds that percentage in his resident district.” The law remained in effect until 2013, when it was expressly repealed by the Arkansas Public School Choice Act of 2013. The 2013 Act allowed for students to transfer to nonresident school districts but did not bar segregative transfers. Instead, the 2013 Act allowed school districts to declare themselves exempt if participating in school choice would conflict with an existing federal-court desegregation plan or order. Two years later, Arkansas enacted the Public School Choice Act of 2015 which eliminated a school district’s ability to declare itself exempt from participating in school choice. Under the 2015 Act, a district seeking an exemption was required to submit proof of an active desegregation order or plan to the Arkansas Department of Education. If a district submitted proof, the terms of the order or plan would govern. In 2017, Arkansas amended the 2015 Act to require districts seeking exemptions to submit proof of a desegregation plan or order “that explicitly limits the transfer of students between school districts.”

Hope, Junction City, and Camden-Fairview applied for exemptions from school choice each year from 2013 to 2017. Lafayette County took part in school choice for the 2013-2014 school year but, after losing thirty non-black students to interdistrict transfers, applied for an exemption due to segregative impact. All of the Districts received exemptions from 2014 to 2017. The Districts applied for exemptions for the 2018-2019 school year but were denied. As a result, they were required to participate in school choice. The Districts filed motions for declaratory judgment, clarification of previous orders, or modification of previous orders. They argued that participating in school choice would have a segregative impact and cause them to violate existing desegregation orders. After a hearing, the district court granted the Districts’ motions to modify the consent decrees to prohibit segregative, interdistrict transfers.

The court found that the repeal of the 1989 Act and the enactment of the 2017 Amendments were a significant change in law. Based on their language and the context surrounding the decrees’ adoption, the court determined that the decrees were intended to prohibit any racial discrimination within the Districts. The court modified the consent decrees to “explicitly prohibit the segregative inter-district transfer of students from [the Districts] to other school districts, unless such a transfer is requested for education or compassionate purposes and is approved by [the Districts’] school board[s] on a case-by-case basis.” The Department appeals the district court’s modification orders.

The Department alleged that the district court erred in modifying the underlying consent decrees. The Department argues that, because the original decrees do not discuss interdistrict transfers, the repeal of the 1989 Act and enactment of the 2017 Amendments are not a substantial change in circumstances supporting modification.