Last month, the Arkansas Board of Education approved a request from the family of a student who wanted to transfer from the Jacksonville/North Pulaski School District to the Cabot district.
Now, the status of that transfer is uncertain.
It is at the heart of a federal court hearing Monday.
The Jacksonville/North Pulaski School District is a party in a federal school desegregation case, and some lawyers in that case have challenged the legality of the transfer.
The judge's decision could clarify when a student in an Arkansas school district that is operating under a desegregation order can and cannot transfer under the state Public School Choice Law. The school choice law allows students to transfer to any school district if there is room in the district and the transfer doesn't adversely affect an approved desegregation plan.
In this case, the student and the student's family are seeking to be named separate legal parties in the desegregation case so they can argue for the transfer.
Sixteen Arkansas districts, including Jacksonville/North Pulaski, have said that because they are under active federal court orders or plans, they are exempt from allowing student transfers under the School Choice Act.
Lance and Michelle Dulaney and their daughter, who is referred to as "K. Dulaney," a ninth-grader now enrolled for the 2016-17 school year at Cabot's Freshman Academy, are asking U.S. District Judge D. Price Marshall Jr. to allow them to participate in the case to protect K. Dulaney's interests in where she is to start school Aug. 15.
Jess Askew III and Ashley W. Hudson, attorneys for the Dulaneys, told Marshall in legal briefs that if the family is allowed to intervene in the case, it will argue that "there is no cause for this Court to disrupt the state laws that permit K. Dulaney's transfer to the Cabot School District" and that the judge should deny the Jacksonville/North Pulaski School District's call for the Arkansas Board of Education to rescind its July 14 approval of K. Dulaney's enrollment in the Cabot district.
Marshall, the presiding judge in the 33-year-old Pulaski County federal school desegregation lawsuit, has scheduled a hearing for 1 p.m. Monday on the Jacksonville district's motion to enforce a 2014 settlement and related court order in the long-running school desegregation case. The Jacksonville district has argued that the settlement and order exempt Jacksonville from participating in student transfers.
"This Court's August 21, 2014 Consent Judgment and the 2014 Settlement Agreement allow JNPSD to be exempt from school choice transfers and require the State of Arkansas to uphold that exemption," Jacksonville/North Pulaski attorneys Scott Richardson and Patrick Wilson have said in written arguments to the judge. "Instead, the State Board of Education has decided that it may nullify this consent decree requirement and allow whatever transfers it chooses."
Attorneys for the Pulaski County Special School District and for black students known as the Joshua intervenors have sent their own written arguments to Marshall in support of the Jacksonville district's position.
The Arkansas attorney general's office is defending the state Education Board decision on the student transfer.
The act allows students to transfer to schools outside the districts in which they live, if the transfers are approved by the district receiving the transfer student. If a receiving district denies a student transfer, the parents' recourse is to appeal to the state Board of Education. The School Choice Act, first enacted in 2013, allowed districts that are subject to federal court desegregation orders to exempt themselves from participating in student transfers. The law was revised by lawmakers in 2015 to tighten the exemption clause.
Assistant Attorneys General Patrick Hollingsworth and Rosalyn Middleton told Marshall that the Board of Education's approval of the Dulaney interdistrict transfer "is not contrary to the terms" of a 2014 desegregation case settlement.
"The state Board is entitled to act based on the evidence before it, including the best educational interests of the student," the state attorneys wrote. "The plain language of the Settlement Agreement places no School Choice Act-related obligations on the state Board of Education."
The state Education Board's vote last month had reversed the Cabot School District's denial of the Dulaney transfer and put into question the denials of earlier, somewhat similar transfer requests from other families.
The Cabot district turned down the Dulaney transfer request because the Jacksonville/North Pulaski School District -- as a party in the desegregation case and the 2014 settlement -- has claimed an exemption to participating in the Arkansas School Choice Act of 2013. If not for Jacksonville's exemption to allowing transfers, Cabot leaders said they would have accepted the student, and there would not have been an appeal.
Hollingsworth and Middleton, the state attorneys, noted that the Dulaney student is "non-white" and would be going to the majority-white Cabot district that has a black-student enrollment of about 3 percent. She had attended an independently operated charter school in recent years -- not a school in the Jacksonville/North Pulaski district -- and she would likely try to continue to attend the charter school if the Cabot transfer is stopped. The charter school, not the Jacksonville district, would receive the state aid for the student.
"Her transfer does not affect either the finances or the racial balance of Jacksonville," the state attorneys wrote.
The state attorneys also argued that the federal court has only limited authority for enforcing the terms of the settlement agreement on the state -- and that is to ensure the payment of state desegregation aid to the Pulaski County area school districts.
"The Jacksonville District's motion raises issues outside of that retained jurisdiction," the state attorneys wrote. "Because the obligation that Jacksonville seeks to impose is not expressly stated in the Settlement agreement, this Court lacks jurisdiction to grant the relief requested by Jacksonville."
The attorneys said the settlement agreement "is not a catchall for any dispute between the State and the parties."
Hollingsworth and Middleton, as well as the Dulaney attorneys, said the Jacksonville/North Pulaski district's opposition to the student transfer is a matter for the state court system -- starting with the Pulaski County Circuit Court and going to the Arkansas Supreme Court, if necessary.
The Jacksonville/North Pulaski district attorneys have argued that one of the provisions of the settlement calls for parties to comply with the School Choice Act of 2013 -- including its provisions allowing a district to be exempt from participating in student transfers if the district is subject to a federal court-ordered desegregation plan.
The state attorneys said the language of the settlement obligates the school districts to abide by the School Choice Act exemptions but doesn't mention the state.
"Because the Settlement Agreement does not bind the State Board to any obligations concerning the Public School Choice Act, the issue of whether the State Board reached the right decision in this case simply turns on the application of state law to the facts," Hollingsworth and Middleton said.
Askew and Hudson, attorneys for the Dulaney family, said the Jacksonville district's effort to cancel the transfer "lacks any legal basis; ignores Arkansas law; misconstrues the terms and effect of the 2014 settlement agreement, the detachment agreements and this Court's orders approving them; and seeks to inject this Court into a family's education decision controlled by state law."
The Dulaney attorneys dispute the Jacksonville district's position that the exemption language in the 2013 school choice law insulates the district from later legislative changes.
"To the contrary, the 2013 Act was amended in 2015 to eliminate the 'exemption' that JNPSD claims," Askew and Hudson wrote. "The present [student] transfer was made under current law, not the 2013 Act."
Under the current law, there is no longer a "blanket exemption" for a district that is subject to a federal desegregation order, the attorneys said. Instead, the district "must present evidence of an actual conflict between the 2015 act and the student assignment obligations of a current desegregation plan or order."
The Dulaney attorneys argued that the Jacksonville/North Pulaski district, as well as the Pulaski County Special district -- both parties in the desegregation case -- have been declared unitary and released from federal court supervision of their student assignment plans.
"School choice in JNPSD cannot conflict with student assignment desegregation obligations because JNPSD has none," Askew and Hudson said. "There is no basis under Arkansas law for JNPSD to claim an exemption from school choice."
Sam Jones, Allen Roberts and Whitney Moore, attorneys for the Pulaski County Special district, have asked the judge to grant the Jacksonville district's motion, finding that the state has violated the 2014 settlement agreement by allowing a school choice transfer from Jacksonville.
They called the state Education Board's change in course -- from denying transfers based on the exemption provision of the School Choice Act to approving them -- "a watershed event."
"This decision impacts JNPSD, PCSSD, and all other districts in the state subject to federal court or agency desegregation orders," the attorneys wrote. "PCSSD anticipate that, if the state Board of Education is allowed to ignore JNPSD's exemption, it will next ignore PCSSD's exemption."
Besides the Jacksonville/North Pulaski district, districts that have claimed exemptions from participating in school choice because of desegregation obligations are: Hot Springs, Fountain Lake, Jessieville, Lakeside (Garland County), Mountain Pine, Lake Hamilton, Camden Fairview, El Dorado, Hope, Pulaski County Special, Junction City, Lafayette County, Cutter Morning Star, Dollarway and Texarkana.
Jones, Allen and Moore said that in negotiating the terms of the 2014 settlement agreement, some parties wanted to allow school choice for students among the Little Rock, North Little Rock and Pulaski County Special districts.
"PCSSD was not unitary," the attorneys recalled. "PCSSD had also already agreed to support the potential detachment of Jacksonville, which would likely cause at least some short-term instability in the district. For those reasons, PCSSD took the position that participation in school choice was a 'deal breaker.'"
The Pulaski County Special district ultimately "negotiated the right to refrain from participating in school choice by agreeing to consent to a specific number of 'legal transfers,'" which is a student transfer system with a different set of rules, including required approval from both the sending and receiving districts.
John Walker and Robert Pressman, attorneys for the Joshua intervenors, are also asking the judge to grant the Jacksonville/North Pulaski district motion.
"The State Board of Education's actions to grant school choice transfers over a district's declaration of an exemption from participating in school choice due to ongoing desegregation litigation is an unconstitutional promotion of segregation and violates the letter and the spirit of the many orders entered in this case," they wrote.
Metro on 08/07/2016