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Attorneys for the state want a federal appeals court to overturn lower-court decisions that keep students in the Hope, Junction City, Lafayette County and Camden Fairview school districts from attending schools in systems in which they don't reside.

A legal team led by Arkansas Attorney General Leslie Rutledge has sent written arguments to the 8th U.S. Circuit Court of Appeals in St. Louis, asking a panel of the court to reverse U.S. District Judge Susan O. Hickey's four Jan. 17 decisions that have the effect of disallowing interdistrict student transfers for the four districts.

In each of her January orders, Hickey approved modifying the terms of the four districts' decades-old desegregation orders and/or decrees "to explicitly prohibit the segregative interdistrict transfer of students ... to other school districts, unless such a transfer is requested for education or compassionate purposes."

[DOCUMENT: Read state's appeal brief]

The state attorneys argued to the appeals court, in documents submitted late Friday and made public this week, that Hickey's orders modifying the terms of the long-standing desegregation plans "violate ... bedrock legal principles" and "require reversal."

The state's appeal brief — including a request to present oral arguments to an 8th Circuit panel — is the latest development in a dispute that began in 2018 when representatives of the four districts told state education leaders that allowing Arkansas School Choice Act interdistrict student transfers would result in the "white flight" of students from their districts and would put the school systems in conflict with their federal court-ordered desegregation mandates.

The Arkansas Department of Education and the state Education Board, however, directed that — with a partial exemption for the Camden Fairview district — the districts had to allow School Choice Act transfers.

The districts complied but also filed motions in their federal desegregation cases asking Hickey to either declare the School Choice Act to be in conflict with their desegregation obligations or to direct that the districts' desegregation orders be altered to reflect the School Choice Act provisions.

As a result of Hickey's orders and subsequent denials to set aside her orders until there is a decision from the 8th Circuit, the state Education Department has exempted the districts from participating in School Choice Act students transfers for the coming 2019-20 school year.

The state's legal team of Nicholas Bronni, Dylan Jacobs and Ka Tina Guest argued to the 8th Circuit that Hickey's decision to modify the terms of the long-standing desegregation decrees incorrectly imposes an "interdistrict" remedy in cases that involve only "intradistrict" violations.

"Thus, in other words, absent a finding of an interdistrict violation — that is, a finding that officials segregated multiple districts along racial lines — a district court cannot order relief affecting more than one district," the state attorneys wrote. "Instead, in intradistrict cases that involve allegations of discriminatory conduct in a single district, a district court may only grant relief as to that particular district. The modification orders here violate that fundamental principle."

The state's attorneys called "illogical" Hickey's finding that modifications to the older cases did not constitute an interdistrict remedy but are a "minor intrusion" on districts other than the plaintiff districts.

"To reverse, this Court needs to hold only that prohibiting interdistrict students transfers is an interdistrict remedy," they wrote.

The state's attorneys also argued that Hickey's January orders violate the Equal Protection Clause of the U.S. Constitution because her orders make the race of a student the sole factor in determining whether a child can exercise interdistrict school choice.

"The Supreme Court has made it clear that all government-imposed race discrimination is subject to strict scrutiny," the attorneys wrote. "While desegregation orders may serve a compelling government interest when imposed to remedy past ... segregation, the district court's modification orders were not entered for that reason. Rather than seeking to remedy any past wrongdoing, the district court imposed its race-based transfer restrictions in order to prevent future demographic changes based on private parental choices."

Attorneys for the Hope, Junction City, Lafayette County and Camden Fairview school districts are expected to respond in early June to the state's written arguments with their own written arguments in defense of Hickey's decisions.

"The districts continue to believe Judge Hickey's rulings are correct" and "will be upheld on appeal," attorney Whitney Moore said Wednesday. Moore and Allen P. Roberts of Camden are attorneys for the four districts.

Moore said Hickey's decisions are based on changes in the terms of the School Choice Act from 1989 to 2017.

"Judge Hickey correctly found that the repeal of the 1989 Act was a material change in circumstance that occurred since the Court last considered each of the districts' cases," Moore said in an emailed statement, "and the way to reconcile the districts' desegregation obligations with the changes in the school choice laws was to allow the districts to avail themselves of the option to obtain an exemption from participation, which the current school choice law expressly allows for districts with desegregation conflicts."

The state attorneys in their written arguments go into the histories of the individual districts' desegregation cases, the oldest of which is the Junction City case that goes back to 1966.


Information from Cynthia Howell at the Arkansas Democrat-Gazette, Arkansas Online.