A federal appeals court panel on Wednesday asked an attorney representing four south Arkansas school districts for the constitutional basis for prohibiting "white flight" of students out of the Hope, Junction City, Lafayette County and Camden Fairview systems.
And if the student transfers out of the districts do occur, 8th U.S. Circuit Court of Appeals Judge Jonathan Kobes asked, would any racially segregative effect be minimal or "de minimis" because of the state restrictions on the percentage of allowable transfers?
A three-judge panel asked those and other questions of Dylan Jacobs, an assistant solicitor general for Arkansas, and Whitney Moore, an attorney for the four school systems, during a St. Louis court hearing in a dispute over Arkansas' School Choice Act.
The state had appealed to the 8th Circuit Court the Jan. 17 decisions issued by U.S. District Judge Susan Hickey that enable the four districts to opt out of participating in the School Choice Act interdistrict student transfers when the transfers interfere with school desegregation obligations.
Specifically, Hickey's four separate, but very similar orders, modify the terms of the districts' federal school desegregation plans to prohibit segregative student transfers in and out of the districts -- except in cases of education or compassionate need.
The four districts are defending the district court's orders in the appeal.
The three-judge panel of Kobes of Sioux Falls, S.D., Michael Melloy of Cedar Rapids, Iowa, and Ralph Erickson of Fargo, N.D., issued no decisions at the conclusion of the 34-minute oral argument Wednesday.
Jacobs, from the Arkansas attorney general's office, told the panel that the deadline for Arkansas families to sign up for interdistrict transfers for the upcoming 2020-21 school year is July 1, 2020. If a court decision is not issued in time for that deadline then "another year of school choice will be lost to the parents and children who want that."
Erickson told the Arkansas attorneys that the panel is taking the case under advisement and would certainly attempt to meet the July 1 deadline with an opinion order.
"If we don't get it done by then that would be a sad commentary on where we are -- given it is December," Erickson said to chuckles from others in the courtroom.
Moore told the panel that Hickey properly modified the districts' desegregation plans -- which date back three or more decades -- and that the modifications "are working."
Student transfers were granted for educational or compassionate reasons to 21 of the 27 students whose families applied to their school boards in the four districts for this current 2019-20 school year. In all, more than 100 students initially sought transfers for this year -- 27 followed up with appeals to their school boards based on their individual education or compassionate needs.
In response to questions from the judges, Moore said, vestiges of segregation remain in the districts, including the location of low-income housing in some districts and not in others and the presence of white student flight out of the four districts.
"What is the case that says white flight is a constitutional violation?" Kobes asked Moore. "I'm looking for the case that supports that as a constitutional violation, and that's what I can't find."
Moore responded that she was not arguing that an interdistrict constitutional violation is present or that Hickey's orders are an interdistrict remedy.
"I don't believe it is," she said of the order. "The state of Arkansas passed the 2017 act and imposed interdistrict transfers on every school district in the state. Our four districts had been operating with no segregative interdistrict movement for a lifetime, since at least since the 1970s and definitely after the 1989 act came into being. For 24 years, from 1989 to 2013, there was not movement that was segregative and these districts are complying with their obligations."
Kobes asked whether the effect of student transfers out of the four districts would be minimal because of state law restrictions on the percentage of students able to transfer away and other restrictions. The law limits an annual loss to 3 percent of students. It also enables a receiving district to deny a transfer if there is not classroom space for the student.
Moore said that the 3% cap in law can be exceeded if siblings of transfer students are also granted transfers. She said she didn't believe there is such a thing as a di minimus constitutional violation, but she said that the 21 transfers that were permitted for this year were mostly white students.
"Our point is you can't allow the state to let private choices of parents where perhaps the motives are not benign," Moore started.
Kobes called it an "odd" argument in light of the discriminatory activity by school districts historically as well as the state's checkered history in regard to school choice.
"I find it odd that the school board has to be empowered to prevent the parents' discriminatory activity," Kobes said. "I'm not sure this is the constitutional issue to have the school boards do this."
"I think the school boards have arrived at the correct conclusions faster than some of the parents," Moore said, adding that the school districts have been the defendants in the desegregation cases and answerable to the courts for compliance with their decrees.
The judge questioned how "education" and "compassion" are defined as a basis for granting transfers of students out of the four districts.
Moore gave examples of a medical situation and a desire by a student to participate in a unique academic program. She also said it shouldn't be too much to ask of parents who desire transferring their children outside the districts in which they live to make their cases to their school boards.
"Why is that mandated by the Constitution or the consent decrees?" Kobes asked.
Moore said it is mandated because there is documented attempts by "tens to 100s" of white students seeking to leave the four districts every year.
Jacobs, the state's attorney, told the judges the districts' granting of student transfers for this year is "entirely a red herring," as the four districts have total discretion to grant the transfers.
One judge asked about the significance of vestiges of segregation existing in the four districts.
"That is news to the state of Arkansas," Jacobs responded and said all school districts have claimed the opposite in reports to the state on their compliance with their desegregation obligations.
"Well then, if you have eliminated all vestiges of discrimination, then are you not allowed to achieve unitary status and come out from under the court orders?" the judge asked.
Jacobs said the Camden Fairview district has been declared unitary and the other three districts have not, and he suggested that the districts don't see an advantage to doing that since they do not want to participate in interdistrict school choice.
Earlier in the hearing, Jacobs had asked the judicial panel to reverse Hickey's orders. He said the district court orders defy U.S. Supreme Court decisions that limit interdistrict desegregation remedies to interdistrict violations of the Constitution.
He noted that at least three of the four districts' longstanding desegregation plans and decrees were based on intradistrict violations -- behavior within the districts -- of the federal law and not interdistrict violations.
The modification orders violate equal protection principles on the basis for treating students differently based on race, Jacobs also argued.
"Arkansas has abandoned that sort of race-conscious student transfer assignments, and this court should not allow the district court to reimpose that by judicial fiat," he said.
Metro on 12/12/2019