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U.S. District Judge Susan O. Hickey ruled Thursday in favor of four school districts that asked to be exempted from participating in interdistrict student transfers because of their decades-old federal school desegregation lawsuits.

Hickey issued four separate but similar decisions that will 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 2019-20 school year and beyond.

Hickey, however, said she would not require students who had been allowed to transfer in this current school year from the four districts to return to their home districts.

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 Thursday, Hickey approved modifying the terms of the four districts' long-standing desegregation orders and/or decrees to include that bar.

The orders and decrees "are hereby MODIFIED to explicitly prohibit the segregative inter-district transfer of students ... to other school districts, unless such a transfer is requested for education or compassionate purposes," she wrote.

Transfer requests made based on education and compassionate grounds must be approved on a case-by-case basis by the school boards in the four districts, she also wrote.

The four districts had challenged the state Board of Education's March 2018 directives that they allow their students to cross district lines to attend schools in districts other than the ones in which they lived.

"I call it a win," Allen Roberts of Camden, an attorney for the four districts, said about the judge's decision. "I think it's real good for the districts."

The four districts had applied to the state Department of Education and had already been denied exemptions from the School Choice Act for the coming 2019-20 school year. Roberts said he will confer with the districts and with Education Department attorneys in the coming days on how best to change that.

The Arkansas attorney general's office had defended state education leaders in the case.

"The Attorney General will decide the appropriate next steps after reviewing today's disappointing decision, which limits parents' rights to choose the best educational opportunities for their own children," spokesman Amanda Priest said in an email Thursday evening.

Roberts and attorney Whitney Moore of Little Rock had 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 to 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.

Bobby Hart, superintendent of the 2,235-student Hope district, said Thursday that 23 students who reside in Hope transferred out of the district this year, most if not all to the Springhill School District. He said he believed the number of Hope transfer students was capped by the number of new students the neighboring district could accommodate.

In the four orders Thursday, Hickey said she was neither voiding nor reversing the Education Board's March 2018 directives that allowed the interdistrict transfers in this school year.

"At the time those students transferred, the Davis decree did not contain the necessary language contemplated by the 2017 act for Hope to claim an exemption from school choice," Hickey wrote about the Hope School District case, Rosie L. Davis et al v. William Dale Franks, et al.

"The modified Davis Decree shall have prospective effect, allowing Hope to claim an exemption from school choice beginning with the 2019-20 school year," she wrote. She made similar statements regarding the newly modified court orders and decrees in the other affected districts.


Hart, the Hope superintendent, said he was pleased with Hickey's order in regard to his district.

"A different order could have been catastrophic for the district -- over the long haul for certain," he said. "But we don't want to gloat over a win or a loss. We try to focus on teaching the kids that we have, try to do a good job by them."

The Hope desegregation case was filed in 1988 by black employees and families in the system. The Camden Fairview case also was filed in 1988, while the Lafayette County case originated in 1992. The Junction City case has its roots in 1966.

The judge noted in her orders that the state's original Public School Choice Act of 1989 provided for interdistrict student transfers but said that no student may transfer to a nonresident district where the percentage of enrollment for a student's race exceeds that percentage in his resident district. The original act also said that in any instance where the provisions of the law would result in a conflict with a desegregation court order, the terms of the order shall govern.

The law was changed over time to eliminate language barring segregative interdistrict student transfers, with segregative meaning that the percentage of enrollment for the transferring student's race exceeds that percentage in the student's home district.

In 2017, the law required school districts to present proof to the Education Department of a genuine conflict under an active desegregation order or plan. The order or plan had to explicitly limit the transfer of students between districts.

The change in the law and the state Board of Education's orders to the districts to participate in school choice led to an Aug. 1 hearing before Hickey. She denied the request for temporary restraining order citing the lack of irreparable harm and proceeded with reaching a final decision on the merits of the legal arguments. The parties said a second hearing was not necessary.

The districts sought a modification in their desegregation orders and decrees based on changes in facts and circumstances.

In the case of the Hope district, for example, the district argued that the changes in the choice law prevented Hope from complying with its constitutional obligations to avoid actions that would have a segregative impact within the district.

Hickey agreed there was a significant change in circumstances. While the district's Davis decree did not expressly prohibit segregative interdistrict transfers, it does bar Hope from engaging in racial discrimination and it called for parties to "make the Hope School District a model school district in Arkansas for desegregation, integration and quality education."

"The Court finds that the Davis Decree clearly intended to prohibit any racial discrimination occurring within the Hope school district, including preventing student transfers which result in segregation of Hope's student body," Hickey wrote.

Also in the Hope case, Hickey discounted the state's contention that Hope had "implied unitary status" or met its desegregation obligations, because there was no evidence to the contrary in what is now a 30-year-old desegregation lawsuit.

Hickey said the state's argument was not persuasive because Hope has not obtained unitary status or even partial unitary status.

Hickey also said that the modification of the court decrees in the four districts does not constitute an impermissible interdistrict remedy.

"The modification would not directly restrict any other school district's ability to participate in school choice or to receive students from other school districts that are otherwise eligible to participate in school choice," she said.

Kimberly Friedman, a spokesman for the Arkansas Department of Education, said the agency's staff is reviewing the court orders and will be conferring with the attorney general's office and governor's office on possible next steps.

Friedman said that the deadline for claiming an exemption to the School Choice Act based on federal court desegregation commitments has passed. Districts that applied were notified Jan. 11 of the state decisions. Districts requesting exemptions for 2019-20 and the department's decisions were:

• Hope: denied.

• Lafayette County: denied.

• Junction City: denied.

• Camden Fairview: granted in part and denied in part.

• Jacksonville-North Pulaski: denied.

• El Dorado: granted.

• All Garland County school districts: granted.

A Section on 01/18/2019

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