The dispute between the state and four south Arkansas school districts over the application of the state's School Choice Act is headed for a rehearing before a federal appeals court panel.
The 8th U.S. Circuit Court of Appeals in St. Louis said Wednesday that a Dec. 31 opinion and judgment issued by a panel of the court are "vacated," and Arkansas' request for a rehearing is granted -- although that will be done by the three-judge panel and not the full court of at least nine judges.
An 8th Circuit 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 student transfers because of conflicts with the districts' decades-old school desegregation obligations.
The districts had argued to the state and to the courts that the student transfers would result in "white flight" from their schools and hinder their efforts to meet racial desegregation mandates in their federal orders and decrees.
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 panel's decision.
The state argued that U.S. District Judge Susan O. Hickey of El Dorado exceeded her remedial authority by granting interdistrict, or multi-school district, relief in what were intradistrict school desegregation court orders and decrees.
The state's request for a rehearing by the full court was supported by the Arkansas Learns organization in a friend-of-the-court brief. More recently, the U.S. Department of Justice, a party in the original desegregation case involving the Junction City School District, asked that the school choice case be reheard by the three-judge panel.
"Arkansas students should never be deprived of the best education, so I am pleased the Eighth Circuit granted the petition for rehearing and vacated its original, erroneous decision in this matter," Arkansas Attorney General Leslie Rutledge said Wednesday in a statement released by her staff.
"I will continue to fight for families to have the benefit of Arkansas's strong school choice law, which allows parents to choose schools that best suit their children's needs," Rutledge said.
Whitney Moore, an attorney for the four school districts that have challenged state directives to allow student transfers, said Wednesday that she and her clients will analyze options on how best to respond.
Hickey in four separate but similar rulings in January 2019 concluded that the districts' old consent decrees were intended to prohibit any racial discrimination from occurring, including racial segregation as the result of student transfers. She found that the state's latest version of the School Choice Act was a significant change in the law and warranted changes in the terms of the districts' old desegregation plans.
Hickey directed that the districts' federal desegregation plans and decrees be modified to exempt the districts from participating in the School Choice Act interdistrict student transfers with exceptions only for educational or compassionate purposes decided on a student-by-student basis.
"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., and an appointee of President Donald Trump, was joined in the decision by U.S. Circuit Judge Michael Melloy of Cedar Falls, Iowa, who was appointed by President George W. Bush. The third member of the panel, U.S. Circuit Judge Jonathan Kobes of Sioux Falls, S.D., a Trump appointee, wrote a dissenting opinion.
"We agree that the laws influencing the consent decrees have clearly changed since the Districts entered into the agreements," the 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.
In asking for a new hearing, Rutledge and her staff argued 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," state attorneys said.
"[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 attorneys said.
The Justice Department -- a party only in the Junction City School District case -- is the most recent party to file a brief in the case, asking last week that the 8th Circuit send the case back to the three-judge panel for a rehearing, rather than to the full court.
"While this case does not meet the demanding standards for rehearing en banc ... the United States respectfully suggests that to correct the error ... the panel, rather than the full Court, should grant rehearing," a legal team of Justice Department attorneys wrote.
The Justice Department attorneys are Principal Deputy Assistant Attorney General Pamela S. Karlan and attorneys Anna M. Baldwin and Bonnie I. Robin-Vergeer.
The Justice Department team said Hickey's modification of the Junction City School District desegregation order did not take into account the existing terms of the old order from 1970.
"The 1970 order enjoined Junction City School District from operating a dual school system, and, specifically, ordered the school district to integrate bus routes and classrooms that were segregated on the basis of race," the team wrote.
In November 1970, the district court "directed JCSD 'to take immediate steps to reassign students to homerooms and individual classes on a non-racial' basis at both schools. The order likewise required the district to provide bus transportation 'on a non-segregated and ... non-discriminatory basis' and to 'immediately redraw their bus routes and reassign students to the busses on a non-racial basis,'" the attorneys wrote.
"To obtain a modification of the 1970 order ... it was Junction City's burden to show that changes to state law impeded the district's ability to comply with its desegregation obligations. Because the district made no such showing, the district court abused its discretion in issuing the 2019 modification, and the panel erred in affirming it," the U.S. legal team said.
The Justice Department team said a hearing before the full court is necessary when a three-judge panel's decision conflicts with a decision of the U.S. Supreme Court or with a previous decision by the appeals court or is otherwise of exceptional importance.
"The panel decision here creates no such exceptional conflict," the team said in arguing that the case be returned to the panel.