A three-judge panel of the 8th U.S. Circuit Court of Appeals on Thursday upheld a district judge's refusal to end a 24-year-old consent decree that uses race-based criteria to restrict student transfers among school districts in Garland County.
The St. Louis-based 8th Circuit panel agreed with now-retired U.S. District Judge Robert Dawson of the Western District of Arkansas that the 1992 consent decree can't be upended by a change in state law.
The decree incorporated race-based student assignment provisions from the 1989 Public School Choice Act, which was deemed unconstitutional in 2012 because of the race restrictions. As a result, legislators replaced the law with the School Choice Act of 2013, which eliminated the race restrictions.
But after six of the seven Garland County school districts asked in 2013 whether they still had to conform with the 1989 School Choice Act rules on student transfers among the districts, U.S. District Judge Jimm Larry Hendren, who now has also retired, said they did. He directed them to continue to comply with the desegregation agreement, including the race-based restrictions on transfers.
In August 2014, the Lake Hamilton and Mountain Pine districts, two of the six districts that sued the Hot Springs School District in 1989, leading to the consent decree, found themselves forced to deny the requests of three black students to transfer from Lake Hamilton to Mountain Pine.
That led those two districts, and the other four districts on the plaintiff's side of the original desegregation case, to officially request on Aug. 25, 2014, that the consent decree be terminated, saying they had changed their original position based on "subsequent events." They were primarily referring to Latishia Walker's inability to register all three of her children in the Mountain Pine district for the 2014-15 school year.
She discovered that her property in Garland County is located in the Lake Hamilton district, even though it is 22 miles from those schools and just 3.8 miles from the Mountain Pine schools. Her two oldest children had attended Mountain Pine schools since 2013, but the Mountain Pine district denied her request, citing the 1989 law.
"We would have permitted those children to transfer to Mountain Pine if we had been able to make the decision with our hearts, but the consent decree took that away from us," Steve Anderson, the superintendent in Lake Hamilton, said at the time, speaking for his district and the Mountain Pine district.
In 2014, the Lake Hamilton district was 2 percent black while the Mountain Pine district was 10 percent black. Under the 1989 law, "no student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's resident district." The six districts argued that this makes the students' race the determining factor in denying the transfer.
They argued, "Based in large part on situations like the one described above, where the race-based limit on inter-district transfer unfairly affects schoolchildren's right to school choice, [the six districts] have concluded that justice and equity require that they seek termination of the settlement agreement."
But Dawson, who was assigned the case after Hendren retired, and who had earlier found the 1989 School Choice Law unconstitutional in a separate case, said the districts failed to meet the standard for termination, and denied their motion.
The 8th Circuit panel agreed in an 8½-page opinion issued Thursday. The panel noted that under Federal Rule of Civil Procedure 60(b)(5), a party may be relieved of a final judgment if the judgment "has been satisfied, released or discharged; is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable."
Dawson, citing earlier opinions, found that in order to terminate the decree, the moving party must demonstrate "full compliance," because the "core of the termination standard" is whether "the vestiges of past discrimination have been eliminated to the extent practicable."
"We agree with the district court that the school districts have not shown evidence of full compliance," the panel said. Even with the new law constituting a change in circumstances, the panel said, "the movants still retain the burden to show that the change in the law has an actual effect on the section of the consent degree targeted, making future application inequitable, and that any such effect warrants termination" of the decree.
The districts seeking an end to the decree also include Cutter-Morning Star, Fountain Lake, Jessieville and Lakeside, the other plaintiffs in the lawsuit against the Hot Springs district that led to the decree.
Allen Roberts of Camden, an attorney for the Hot Springs district, said Thursday that "Hot Springs has always stated a willingness to sit down and talk about modification of the consent decree," and he would expect that to be the next step.
The Hot Springs district was invited to join the other districts' request to end the decree in 2014 but didn't.
Asked when some movement might be expected on that front, Roberts said, "I guess that's always the question, the delicate question of who is going to pick up the phone first."
He noted that the state is also a party to the lawsuit and said that perhaps it will make the move.
The 8th Circuit panel included U.S. circuit judges Raymond W. Gruender of St. Louis, Myron H. Bright of Fargo, N.D., and Jane Kelly of Cedar Rapids, Iowa. After the retirements of both Hendren and Dawson, the lawsuit is now in the hands of U.S. District Judge Susan Hickey.
Metro on 08/19/2016