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Judge declines requests to stop student transfers

Judge declines requests to stop student transfers

August 10th, 2018 by Arkansas Democrat-Gazette in Arkansas News

U.S. District Judge Susan O. Hickey on Wednesday declined requests by four school districts to stop Arkansas School Choice Act student transfers across school district lines.

The judge's decision to deny recent motions for temporary restraining orders and preliminary injunctions to stop student transfers has the affect of allowing about 132 students living in Hope, Camden Fairview, Lafayette County and Junction City school districts to proceed with their requests to transfer to other school systems.

About 70 of those 132 who have requested interdistrict transfers for the school year that starts Monday reside in the Hope district. Another 42 live in the Lafayette County district, 15 are in Camden Fairview and five are in the Junction City system.

In four separate, but very similar orders released Wednesday, Hickey concluded 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."

She also said that failure to show irreparable harm is a sufficient enough reason to deny requests for injunctions without going into the other standards for granting preliminary injunctions.

The Arkansas attorney general's office staff represented the state Department of Education and the state Board of Education on the matter.

"Today's decision by Judge Hickey is a major victory for children, parents, and the future of Arkansas," Amanda Priest, a spokesman for the attorney general's office, said in an email Wednesday evening.

"These families now have the benefit of Arkansas' strong school choice law, which allows parents to choose schools that best suit their children's needs," she said.

Attorneys Allen P. Roberts of Camden and Whitney Moore of Little Rock late last month filed the motions for the temporary restraining orders and/or preliminary injunctions against the Arkansas Department of Education and the state Board of Education on behalf of the school districts.

The motions were intended to stop the interdistrict student transfers from occurring until the judge could conduct full hearings on whether the transfers will cause a violation of their federal court-ordered desegregation requirements.

Roberts said Wednesday night that he would not recommend that the districts appeal Hickey's order on the restraining orders to a higher court.

"My idea is to get it expedited and tried on the merits as soon as we can," he said.

Earlier this year, the four school districts asked the state to exempt them from participating in Arkansas School Choice Act interdistrict student transfers for the 2018-19 school year.

The districts argued that allowing students to cross district lines to attend schools in districts in which they don't reside will result in "white flight" and put the four school systems in conflict with federal court-ordered desegregation mandates.

The Department of Education and the state Board of Education denied or partially denied the district requests for exemptions from the School Choice Act transfers.

The four districts followed up by filing motions in their federal desegregation cases asking that Hickey either declare the School Choice Act program 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 desegregation cases in which it wasn't already a party — Hope, Lafayette County and Junction City.

In her denial Wednesday of temporary restraining orders and preliminary injunctions, Hickey wrote that failure to demonstrate irreparable harm is an independently sufficient reason to deny injunctive relief.

She acknowledged districts' arguments that if students were allowed to transfer for this school year, it is unlikely that they will ever return, causing a segregative as well as a financial impact on the district.

Attorneys from the state attorney general's office had countered to Hickey that any harm would not be irreparable. Should the districts ultimately win on the merits of the case, the state attorneys said the federal judge could order the return of the students to their resident districts. Additionally the judge could order the restitution of state funding to the districts if their students are returned as the result of any court decisions later on.

The judge also noted the contention by the state attorneys that the loss of students in any of the districts would have a minimal impact on the black enrollment in the districts. The increase in the percentages of black students in the affected districts would be anywhere from 0.3 percent to a number approaching 5 percent, depending on the district.

"No student would notice such a change, and no parent perception of Hope's racial identity would be affected," Hickey quoted the state attorneys as saying.

"Upon consideration, the Court finds that Hope has failed to carry its burden of establishing that it will suffer irreparable harm absent preliminary injunctive relief," the judge wrote about the Hope case and made very similar statements about the other districts.

"The Court is not persuaded that Hope will suffer imminent financial harm," she also wrote, noting that the district's superintendent, Bobby Hart, had testified at an Aug. 1 court hearing that funding for the the 2018-19 school year is already in place and the district won't suffer any immediate financial harm. She said that the potential loss of funding in later years was "too far removed from the present to support a finding of irreparable harm."

Hickey also said she was not convinced that the loss of "certain students, in and of itself," constitutes irreparable harm to the districts. She said the districts did not cite any authority to support that proposition.

The districts had argued that the majority of their students seeking interdistrict transfers are white.

Also in her orders, Hickey said Wednesday that "it is well established that irreparable harm must be certain and cannot be speculative."

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