Arkansas' legal and education leaders are appealing a federal judge's orders that exempt four south Arkansas school districts from participating in interdistrict student transfers because of their decades-old federal desegregation lawsuits.
The Arkansas attorney general's office, which represents the Arkansas Department of Education and state Board of Education in support of the interdistrict transfers, has notified the 8th U.S. Circuit Court of Appeals at St. Louis of its intent to appeal decisions made Jan. 17 by U.S. District Judge Susan O. Hickey of El Dorado.
Hickey issued four separate but similar decisions that day that enable the Hope, Junction City, Lafayette County and Camden Fairview school districts to claim exemptions from participating in the state's School Choice Act in the upcoming 2019-20 school year and beyond.
The state's School Choice Act, which dates to 1989 but has since undergone multiple legislative revisions, allows students to attend schools in districts other than the ones in which they reside -- unless the receiving district has inadequate space for the transfer student or if a district submits proof to the Arkansas Department of Education that transfers present a genuine conflict with an active desegregation order or desegregation plan that explicitly bars interdistrict student transfers.
In each of her orders last month, Hickey approved modifying the terms of the four districts' long-standing desegregation orders and/or decrees to include that bar on segregative interdistrict transfers of students -- "unless such a transfer is requested for education or compassionate purposes," she wrote.
Hickey, however, did not require students who were allowed to transfer in this current school year from the four districts to return to their home districts.
Amanda Priest, a spokesman for the Arkansas attorney general's office, said Monday that Attorney General Leslie Rutledge is appealing the district court decision to modify the old court orders "because that decision wrongly robs parents of the right to decide what school is best for their children."
In conjunction with the notice of appeal filed late last week, the state's legal team also asked Hickey to stay, or put a hold on, the carrying out of her orders by the districts pending the outcome of the appeals to the 8th Circuit Court.
"Given the time-sensitive nature of this case, Defendants respectfully request that the time for filing a response to this motion be shortened to ten days (to February 25, 2019) and that this Court rule on the motion for a stay pending appeal no later than 5:00 p.m. on March 1, 2019," attorneys for the state wrote.
The state attorneys in this case are Arkansas Solicitor General Nicholas J. Bronni, Assistant Solicitor General Dylan L. Jacobs and Assistant Attorney General Ka Tina R. Guest.
"If the Court does not issue an order granting or denying Arkansas's motion to stay, Arkansas will treat the lack of an order as a constructive denial for purposes of seeking a stay pending appeal from the United States Court of Appeals for the Eighth Circuit," they said.
Whitney Moore of Little Rock, who represents the four school districts in the case, said Monday that she and co-counsel Allen Roberts of Camden believe Hickey's orders were correct and should not be stayed or put on hold.
The four districts in recent weeks have asked the state to exempt them from the School Choice Act transfers in the 2019-20 school year based on the newly modified desegregation plans that bar interdistrict transfers and the language in the choice law.
"The orders that Judge Hickey issued are very clear that we should be allowed to seek an exemption starting with the 2019-20 school year under this order," Moore said. "We are hopeful that the state board, if not the department, will adhere to her order."
Applications for student interdistrict transfers are due by May 1. Receiving school districts have until July 1 to notify parents that they have space available for the transfer students.
In similar but not identical written legal arguments to support the motions for a stay in each of the four school districts, the attorneys for the state presented a preview of the cases they will likely make to the 8th Circuit.
"This is a case about whether a district court is entitled to modify a decades-old desegregation order to address a problem that no one ever thought existed and that this Court had never previously found existed," the legal brief regarding the Junction City School District begins.
"Indeed, despite there never being any finding that the Junction City School District and its surrounding districts engaged in unlawful interdistrict discrimination practices, this Court modified a fifty-year-old desegregation order to prohibit interdistrict transfers that it declared--without analysis or any evidentiary basis--discriminatory," the state attorneys argued.
"In so doing, this Court also violated basic equal protection principles when it ordered the State of Arkansas and school districts to treat children differently based solely on their race," the Junction City brief states.
The motions for a stay regarding each district are accompanied by affidavits from families who live in the four districts who want to send their children to other districts this coming school year and from superintendents in nearby districts who want to welcome the transfer students into their systems.
"Our main reason for seeking school choice is to ensure that our children are educated in a safe environment," said Randi Landry in one of the affidavits.
Landry lives in the Camden Fairview School District but wants her three children to attend schools in the Smackover-Norphlet School District.
She said she has concerns about the quality of education that her oldest child received while in a Camden kindergarten. She also said that having her children attend school in Smackover-Norphlet would be more convenient for the family. And, if unable to send her child to the Smackover district, Landry said she will either home-school her children or move into the Smackover district.
"We would like the opportunity to make educational choices about our children's future that are in their best interest," Landry said.
Megan Livingston, who lives in the Junction City School District, had similar comments.
"I do not believe my children will receive a good education if required to attend school in the Junction City School District," she wrote. "If we are forced to attend Junction City School District, we may consider private school. I believe that placing my children in Parkers Chapel School District is in their best interest."
J. Carroll Purtle is the superintendent of the Spring Hill School District that last year accepted 24 transfer students from the Lafayette County and Hope school districts. The district has received 32 applications for transfers in the coming school year -- 25 from Hope and Lafayette County, he said. Five of those are siblings of children already attending Spring Hill schools.
"Because of the January 17, 2019, order, I cannot accept the sibling students into the SHSD," Purtle said. "As a result, those families will have to make a difficult decision to separate and maintain the children at two different districts or keep the children together at a lower-performing school."
"If school choice applications are not approved by the July 1, 2019, deadline, then I will not be able to accept school choice transfers," Purtle also said. "Students will have to wait an entire school year to apply for school choice."
Other superintendents submitting affidavits included Michael White, superintendent of the Parkers Chapel district, and John Gross, superintendent of the Smackover-Norphlet School District.
Rick McAfee, superintendent of the Nevada School District based in Rosston, said his district has as many as 600 seats that could be filled by transfer students from Hope and Camden Fairview. His district has not received any transfer requests, however, because residents of those districts are being told that transfers are not allowed and because they are "erroneously informed that transportation will not be provided to their children."
'WHITE FLIGHT' ARGUMENT
Roberts and Moore, the attorneys for the four districts, argued to state education leaders last year that allowing students to cross district lines to attend schools in districts in which they don't reside would result in "white flight" and put the four school systems in conflict with their long-standing federal court-ordered desegregation mandates.
The Department of Education and the state Board of Education denied or, in the case of the Camden Fairview district, partially denied the requests for School Choice Act exemptions.
The four districts followed up by filing motions in their federal desegregation cases asking Hickey to either declare the School Choice Act to be in conflict with the desegregation obligations or to direct that the districts' desegregation orders be altered to reflect the School Choice Act provisions.
After the districts submitted those motions to Hickey, the state sought and received permission to intervene in the three federal cases in which it wasn't already a party -- Hope, Lafayette County and Junction City.
The state's attorneys argued that the four districts were in effect proposing an interdistrict remedy in their cases, which would be impermissible because the courts had not found interdistrict constitutional violations, only intradistrict violations.
In August, Hickey denied the districts' request for a temporary restraining order to stop the student transfers for this 2018-19 school year.
She said at the time that none of the four districts had satisfied "its burden of making a clear showing that it would suffer irreparable harm without the preliminary injunctive relief."
The judge's initial decision to deny the temporary restraining orders had the the effect of allowing as many as 132 students living in the four districts to proceed with their requests to transfer to other school systems. About 70 of those 132 resided in the Hope district, 42 in the Lafayette County district, 15 in the Camden Fairview district and five in the Junction City district.
A Section on 02/19/2019
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