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story.lead_photo.caption U.S. District Judge D. Price Marshall Jr.

U.S. District Judge D. Price Marshall Jr. on Wednesday dismissed claims made in a 2015 lawsuit that state leaders were motivated by racial discrimination when they took control of the Little Rock School District and dissolved its School Board.

Photo by Special to the Democrat-Gazette
Joy Springer is shown in this file photo.
Photo by Democrat-Gazette file photo
Jim Ross is shown in this file photo.

"At the threshold, Plaintiffs haven't offered enough facts showing a plausible racial motivation behind any of the challenged decisions," Marshall wrote in a 30-page order granting the motion by the Arkansas attorney general's staff to dismiss the discrimination claims against state leaders.

Marshall is the presiding judge in the lawsuit that was filed last year by a team of attorneys headed by Rep. John Walker, D-Little Rock, against Arkansas Education Commissioner Johnny Key, the Arkansas Board of Education and then-Little Rock Superintendent Baker Kurrus. The suit challenged the January 2015 state takeover of the Little Rock district and the expansion of publicly funded charter schools in the district. It also alleged disparate treatment of students and inequitable conditions of the school buildings in the district.

The lawsuit's claims about students and facilities remain in contention and are scheduled to be the subject of a federal court trial starting July 10.

[DOCUMENT: Read the judge's order]

Plaintiffs in the lawsuit include Jim Ross and Joy Springer, who were among the seven members removed from the School Board after the state took control of the district because six of its 48 schools were rated by the state as academically distressed -- the result of low student achievement on state math and literacy tests over a three-year period. Other plaintiffs are a group of black students and their families, most of whom are not identified by their real names but by the last name of Doe.

"The governing legal standard is plausibility: the Plaintiffs must allege enough facts against the State Defendants to show that racial motivation is not merely possible, but plausible," Marshall wrote, adding that "eloquent arguments" made by the plaintiffs can't replace facts.

"Of course it's possible," the judge continued. "It's conceivable that, somewhere in all this, someone had foul intention ... to benefit white students and to harm black students, their parents, and citizen servants such as Springer and Ross. It's possible," he said and he acknowledged that there was a disproportionate racial effect because the student enrollment in the district is predominantly black, a majority of the dismissed School Board was black and the enrollment at charter schools was "whiter and wealthier" than the students in the district's schools.

He said "the settled precedent is clear; discriminatory effects alone are insufficient to show discriminatory intentions. What's missing are pleaded facts that show the intent to discriminate based on race, facts that show foul thoughts becoming harmful actions," he added.

The judge said that the plaintiffs "pleaded plausibly" that the state's executive branch has decided to shake up public education in Little Rock and those decisions have fallen harder on the plaintiffs and those similarly situated.

"Those facts, though, don't offend the Constitution or federal law," Marshall said. "The fullness of time will show whether the decisions were wise."

He also said that letting a "doubtful case proceed is often the better course, but not where the governing law is clear and all the facts simply do not measure up."

Arkansas Attorney General Leslie Rutledge, whose staff represented the state education leaders in the lawsuit, said in a statement Wednesday that she was pleased with the dismissal of the claims against the state.

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"As the Court concluded, the Plaintiffs' claims of discrimination were simply not plausible," Rutledge said. "It is a priority for the State of Arkansas to find the best way to educate all of its children, and this decision helps ensure we have the ability to do so."

A telephone message left for Walker at his office Wednesday afternoon was not returned.

Ross, the former School Board member and plaintiff in the case, called the decision disheartening.

"I guess it is consistent with where the court has been going since the 1980s," said Ross, who is a faculty member in the history department at the University of Arkansas at Little Rock.

"I'm drawn to pages 19 and 20 where he does say emphatically that the state's actions affect Little Rock's black population," Ross said about Marshall's order. "He recognizes that and that is what this whole battle has been about. We started off with a dream that we could have equity and real opportunity for these kids. What we know is that the Little Rock district hasn't done it for 60 years -- it can't or won't do it. We know the charter schools are failing these kids, exiting them. ... And you have a state that seems oblivious to it.

"The court said," Ross continued, "that we didn't prove that they don't care about black kids, but the outcome is black kids continue to suffer two years after this blasted takeover."

In the court order, Marshall described events surrounding the state Board of Education's 5-4 vote in 2015 to take over the school system, including changes in state laws about academic distress and the state Supreme Court's decision upholding the takeover.

He included statistics about the racial make up of the eSTEM and Quest Middle School of West Little Rock, as compared with the Little Rock district. He noted that the Little Rock district lost more than $8 million in 2008-09 and more than $12 million in 2010-11 to charter schools because state aid followed students to the charter schools.

The judge also highlighted the roles of then-state Education Board member Vicki Saviers, who earlier served on the eSTEM Public Charter Schools board of directors, and current Education Board member Diane Zook, whose nephew Gary Newton had advocated for the Quest school.

The judge said that "the takeover wasn't graceful or perfect. Bureaucracies always lumber along. But the deviations Plaintiffs raise don't make a racial motive plausible."

Later in the decision he wrote that he had to determine whether the state Education Board's actions can be explained without reference to racial concerns.

"They can," he wrote in his order. "And the explanation is politics -- politics in the pure sense of that word: ideas and elections have consequences for public policy. Citizens will disagree or agree with the wisdom of what happened here; but all would agree that our political system's translation of votes into power is part of what makes us free and equal self-governing citizens. The State Board's actions show representative government pursuing divisive but not unconstitutional policy," he said.

As for the argument that Springer and Ross were removed from the School Board in violation of their due-process rights, Marshall disagreed. He said the law allowed the takeover and the dismissal of the School Board. He also discounted their claims of being retaliated against for speaking out about racial inequality in the district. He said the two board members weren't singled out for removal, as every board member was removed.

The judge raised the issue of the dismissal of Kurrus as the state-appointed superintendent of the district after his public objections to the expansion of charter schools in the city. Marshall said the course of events strengthen "the allegation that the pro-charter viewpoint is ascendant. On the other [hand], it undermines any inference that Kurrus was just a yes man for certain white elites," the judge wrote, declining to give the plaintiffs in the case a chance to rewrite their lawsuit.

Marshall cited John Adams, one of the nation's founders and second president, for his defense of British soldiers charged in the Boston Massacre. Adams said in that defense that "facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence."

The judge said the takeover of the district and the expansion of charter schools in Little Rock are "facts heavy with possibilities both good and bad."

"Plaintiffs' careful amended complaint ably presents the full weight of all the facts. It does not, however, plausibly show that the State Board's extraordinary steps were partly motivated by racial animus or were otherwise constitutionally impermissible, " Marshall said, concluding that the plaintiffs' claims that their First Amendment, 13th Amendment, 14th Amendment, 15th Amendment and conspiracy claims against the state defendants are dismissed.

A Section on 09/29/2016

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