Activity has resumed in a 2019 federal lawsuit in which four south Arkansas school districts challenged state directives that the school systems permit Public School Choice Act interdistrict student transfers.
An 8th U.S. Court of Appeals panel in a 2-1 decision in December upheld a set of lower court decisions that excused the Hope, Junction City, Lafayette County and Camden Fairview school districts from participating in interdistrict transfers because of conflicts with the districts' decades-old federal school desegregation obligations.
The Arkansas attorney general's office in mid-February -- on behalf of the state Education Department and the state Board of Education -- asked that the full 8th Circuit Court reconsider the case. The state is arguing that the district court exceeded its remedial authority by granting interdistrict or multischool district relief in what were decades-old intradistrict desegregation court orders and decrees.
The appeals court has given the four districts and other parties until Monday to respond to the request for a hearing by the whole 8th Circuit court.
The Arkansas Learns organization then asked the 8th Circuit that it be allowed to file an amicus curiae, or friend of the court, brief in support of the state's request for the hearing. The request is accompanied by the proposed 20-page brief in the event the amicus status is granted.
The court granted the amicus request Friday afternoon.
Arkansas Learns is a nonprofit organization that advocates for school-choice options to empower parents to choose the best learning environments for their students to produce better educational outcomes.
And, last week, the U.S. Department of Justice's Civil Rights Division signaled its interest in the case, asking to extend the Monday deadline to March 19 for responding to the state's request for a hearing before the full 8th Circuit Court.
The original appeal and now the request for a hearing before the full appeals court center on U.S. District Judge Susan Hickey's January 2019 decisions to modify the four districts' federal school desegregation court orders or consent decrees. The modifications to those decisions are meant to exempt the four districts from having to participate in Arkansas Public School Choice Act student transfers.
The state's School Choice Act, which dates to 1989 but has since undergone several legislative revisions, permits 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 Education Department that transfers present a genuine conflict with an active desegregation order or desegregation plan that explicitly bars interdistrict transfers.
The four districts initially argued to the state and ultimately to Hickey that allowing their students to cross district lines would result in "white flight." That "white flight" would put the four school systems in violation of their long-standing desegregation mandates.
In each of her January 2019 orders, Hickey approved modifying the terms of the four districts' desegregation orders and/or decrees to prohibit segregative interdistrict transfers. The judge did allow for transfers for educational or compassionate purposes, which are to be decided on a case-by-case basis by a school board.
Hickey concluded that the change in state law over time was significant. She also concluded that the districts' consent decrees were intended to prohibit any racial discrimination from occurring, including racial segregation as the result of student transfers.
"Based on our review of the record ... we cannot find that the district court abused its discretion in modifying the consent decrees," U.S. Circuit Judge Ralph Erickson wrote in December. "For the reasons stated herein, we affirm."
Erickson of Fargo, S.D., was joined in the decision by U.S. Circuit Judge Michael Melloy of Cedar Falls, Iowa. The third member of the appeals court panel, U.S. Circuit Judge Jonathan Kobes of Sioux Falls, S.D., wrote a dissenting opinion.
"We agree that the laws influencing the consent decrees have clearly changed since the Districts entered into the agreements," the appeals court panel majority said.
"Had Arkansas law not prohibited interdistrict transfers when the decrees were enacted, it is likely that the Department of Justice would have required that language similar to the district court's modification be included in the agreements.
"A plain reading of the consent decrees shows that they were intended to prohibit all forms of racial segregation," the 8th Circuit panel continued. "It was reasonable for the authors of the decrees to rely on existing laws to frame the agreements and not include provisions for actions already prohibited by those laws," Erickson wrote for the panel.
Arkansas Attorney General Leslie Rutledge and her staff in asking for a new hearing argue that the panel decision removes limits on a district court's power to expand the terms of "long-dormant desegregation consent decrees."
"Instead ... district courts may now reopen decades-old decrees and bar children -- based solely on their race -- from exercising school choice under state law and transferring to better performing schools.
"[A full court] review is warranted because that approach squarely conflicts with [U.S.] Supreme Court precedent governing the scope of a district court's remedial powers and forbidding race-conscious classifications absent a compelling governmental interest and narrow tailoring," the introduction to the state's motion says.
"Indeed, the issues presented on this appeal are of the utmost importance to parents, children, school districts, and States throughout this Circuit," the state representatives also said.
In its successful request to file a friend-of-the-court brief in support for a new hearing, the Arkansas Learns organization argued: "With school choice as one its core principles, Arkansas Learns has a strong, compelling interest in rehearing because the majority panel opinion threatens school choice in Arkansas," Gary Marts Jr. and Scott Irby of the Wright, Lindsey & Jennings law firm of Little Rock wrote to the 8th Circuit.
"That threat does not apply only in the school districts directly involved in the case. That threat also looms over other school districts throughout Arkansas where the majority opinion might offer an easy way to avoid school choice."
"Arkansas Learns believes that the Court should grant rehearing en banc to correct this situation, which is contrary to decisions of this Court and the Supreme Court of the United States," they wrote.
The U.S. Justice Department is a party only to the Junction City School District litigation and not part of the cases involving Hope, Lafayette County or Camden Fairview.
The federal agency did not take a position at the district court level on the merits of the motion to modify the Junction City School District's long-standing federal court remedial order; nor did the Justice Department file a brief before the panel in the consolidated appeals.
"The United States requires additional time to respond to the petition for rehearing en banc," federal agency attorneys wrote this week.
"The response will require several layers of internal review within the Department of Justice, particularly given that the United States has not previously taken a position on the permissibility of the district court's modification of the Junction City School District's remedial order."
The Justice Department motion was submitted by Pamela Karlan, principal deputy assistant attorney general and agency attorneys Bonnie Robin-Vergeer and Anna Baldwin.
As of Friday, the appeals court did not respond to the request for the March 19 extension.