Little Rock school takeover valid, state argues

State attorneys argued to a federal judge Wednesday that complaints made by Little Rock families and former School Board members about the 2015 state takeover of the district should be dismissed.

The state's attorneys said, in part, that the Arkansas Department of Education, as an agency of the state, is immune from being sued. That's because of the 11th Amendment to the U.S. Constitution and the doctrine of sovereign immunity, all of which protect the state from being sued by its residents without the state's consent.

The motion sent late Wednesday afternoon to U.S. District Judge D. Price Marshall Jr. further argued that the lawsuit filed last year by a legal team headed by state Rep. John Walker, D-Little Rock, fails to give facts on which the federal court can grant relief.

The state attorneys also said former Little Rock School Board members Jim Ross and Joy Springer, who are among the plaintiffs in the case, are not entitled by law to keep their elected positions and are without standing to assert equal-protection claims against the state.

The motion to dismiss was submitted to Marshall by Arkansas Attorney General Leslie Rutledge, Solicitor General Lee Rudofsky, and Assistant Attorneys General Rosalyn Middleton and Patrick Hollingsworth.

Walker and his co-counsel team of Robert Pressman, Gale Stewart and Austin Porter had filed the federal lawsuit against state and Little Rock School District leaders -- Education Commissioner Johnny Key, the state Board of Education members and Little Rock Superintendent Baker Kurrus.

The suit challenged the state's takeover of the Little Rock district and the dismissal of the district's locally elected seven-member School Board. The state Education Board voted 5-4 on Jan. 28, 2015, to assume control of the 25,000-student district because six of the district's 48 schools were labeled by the state as "academically distressed."

Academically distressed schools are those in which more than half of the students scored below proficient on state math and literacy exams over three years.

The lawsuit also objected to the condition of school buildings in the district and treatment of students.

Walker and his team filed the suit on behalf of two displaced Little Rock School Board members as well as a group of district students and their parents, most of whom are not identified by their real names but are referred to by the name Doe.

The state's attorneys said the Springer/Ross/Doe lawsuit asserts two sets of unrelated claims. The first set deals with claims by black students in the district and their parents about the lack of equal opportunities, resources and facilities for schools that have predominantly black enrollments.

The state's attorneys said those claims will be dealt with by Kurrus in his role as superintendent.

To that end, attorneys for the district later Wednesday evening submitted a 31-page response, saying that the district denies it has violated the U.S. Constitution or the statutes cited in the lawsuit. The response also said the district does not object to the federal court's jurisdiction to decide the matters alleged in the complaint. Most of the school district's response lists its denials to or lack of information about each allegation.

In addition to the claims about the Little Rock School District's treatment of black students, the Springer/Ross/Doe lawsuit focuses on the state takeover of the district and allegations of conspiracy to deny constitutional rights to those who filed the lawsuit, the state's attorneys told the judge.

The state attorneys argued that the plaintiffs incorrectly argued that the state denied them equal protection of the law or is treating them differently from others in the same situation.

"The amended complaint attempts to assert Equal Protection claims against the State Defendants by cobbling together a series of race neutral circumstances and conclusory statements," according to the state's brief in support of the motion to dismiss. "Although dressed in the trappings of an equal protection claim the Plaintiffs, at bottom, challenge the State Board's authority under Arkansas law. The facts alleged as to the State Defendants do not state claims [capable of being heard and determined] in this Court."

The state attorneys note that Ross and others filed a lawsuit in Pulaski County Circuit Court last year to reverse the state Education Board's action against the Little Rock district. That lawsuit was dismissed by the Arkansas Supreme Court in 2015 for failing to state facts that would permit an exception to the state's immunity from being sued.

While Ross and Springer argued in the federal lawsuit that their elected positions are protected by the state laws that set the length of their terms, the state attorneys said the statutes do not limit the power of the state to remove board members. The statutes actually authorize the state to remove a school board or cause a district to operate without a school board, the attorneys wrote.

The lawsuit's claim that the plaintiffs have been denied equal protection of the laws must be supported by facts demonstrating that the state Education Board's actions were motivated by discriminatory intent and purpose, such as bearing more heavily on one race than the other and departures from normal procedures, the state attorneys wrote.

"The state Board's assumption of the authority of the LRSD board affected the entire district," the state attorneys responded. "Its action equally affected all students, parents and members of the LRSD board, regardless of race or other classification."

The state attorneys said the lawsuit refers to past events that are "wholly unrelated" to the state Education Board's takeover of the district last year. Those included allegations that the Arkansas Department of Education didn't properly oversee federal programs aimed at achievement gaps in the district, delayed disbursement of federal Title I money to the district and approved the eSTEM and Quest charter schools, which are public independently operated schools in Little Rock.

"The plaintiffs disagree with the State Board's action but allege nothing tying approval to a purpose or intent to discriminate," the brief said.

"In this and other circumstances, the Plaintiffs mistake the LRSD for a district that is not unitary -- where expressly using race as a factor may be required," they wrote.

"LRSD has, of course, been declared fully unitary [in 2007]. The State Board may not use race as a determinative factor absent a compelling interest -- and any such action must be narrowly tailored to achieve that compelling interest. Thus, declining to employ race as a determinative factor is not evidence of discriminatory purpose."

The state's response delves into the sequence of events that led to the state takeover vote and argues that the plaintiffs used a series of "race neutral" statements and circumstances by or about the state Education Board members -- particularly Education Board member Vicki Saviers of Little Rock -- to create an appearance of discriminatory purpose. The state attorneys called the plaintiffs' efforts in that regard "flawed."

The attorneys disagreed with the plaintiffs' arguments that the rules for academic distress were not properly established, saying that the public record shows otherwise.

"Giving the plaintiffs the benefit of every doubt, the facts alleged (as opposed to conclusions) demonstrate a disagreement about the merits of the State Board's decision to assume authority over the LRSD, and a contention that the ADE and State Board should have done more to assist the LRSD. The facts alleged do not show that any member of the State Board or any employees of the ADE acted with the intent or purpose to discriminate.

"Indeed, assuming the allegations of the [lawsuit] to be true, it might be said by some that the alleged deficiencies in the LRSD begged for change," the state attorneys wrote. "The plaintiffs contend that black students and parents bear a disproportionate part of the burden of these deficiencies. It is equally, if not more, plausible on the facts alleged that the action of the State Board potentially benefits the parent and student Plaintiffs in this case."

A Section on 02/11/2016