United States v. Arkansas Department of Educ. ( 2020 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1340
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Junction City School District; R.L. Bolen, Superintendent of the Junction City
School District No. 75; Junction City School Board
lllllllllllllllllllllDefendants - Appellees
v.
Arkansas Department of Education; Arkansas State Board of Education
lllllllllllllllllllllIntervenors - Appellants
------------------------------
lllllllllllllll
Brittany Harrison; Katelyn Williams; Lance Harrison; Chase Williams; Chasity
Klutts; Sarah McCoy; Cole McCoy
llllllllllllllllllllAmici on Behalf of Appellant(s)
___________________________
No. 19-1342
___________________________
Rosie L. Davis
lllllllllllllllllllllPlaintiff - Appellee
v.
William Dale Franks
lllllllllllllllllllllDefendant - Appellee
v.
Arkansas Department of Education; Arkansas State Board of Education
lllllllllllllllllllllIntervenors - Appellants
___________________________
No. 19-1348
___________________________
Mary Turner, Individually and as next friend of Torrance Turner, a minor; Lucy
Cheatham, Individually and as next friend of Andrew Cheatham, a minor; Mary
Rose, Individually and as next friend of Victor Rose; Obie Sasser, Individually
and as next friend of Frank Sasser, a minor; Barbara Dudley, Individually and as
next friend of Kerri Dudley, a minor; Ida Dudley, Individually and as next friend
of Tia Dudley; Rosie Blair, Individually and as next friend of Kimberly Blair, a
minor; Johnny Blair, Individually and as next friend of Kimberly Blair, a minor;
Robert Wise, Individually and as next friend of Valarie Wise, a minor; Mildred
Thompson, Individually and as next friend of Kelona Thompson, a minor
lllllllllllllllllllllPlaintiffs - Appellees
v.
Lafayette County School District
lllllllllllllllllllllDefendant - Appellee
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Larry Hudson, Individually and in his official capacity as Superintendent of
Schools for the Lewisville School District No. 1, A Public Body Corporate; Hollis
Sasser, Individually and in his official capacity as President of the Board of
Education of the Lewisville School District No. 1, A Public Body Corporate;
Harry Smith, Individually and in his official capacity as member of the Board of
Education of the Lewisville School District No. 1, A Public Body Corporate;
Leslie Nutt, Individually and in his official capacity as member of the Board of
Education of the Lewisville School District No. 1, A Public Body Corporate;
Steve Groves, Individually and as member of the Board of Education of the
Lewisville School District No. 1, A Public Body Corporate; Carolyn Moss,
Individually and as member of the Board of Education of the Lewisville School
District No. 1, A Body Corporate; Johnny Ross, Individually and as member of the
Board of Education of the Lewisville School District No. 1, A Body Corporate
lllllllllllllllllllllDefendants
v.
Arkansas Department of Education; Arkansas State Board of Education
lllllllllllllllllllllIntervenors - Appellants
___________________________
No. 19-1349
___________________________
Larry Milton, on behalf of Himself and Infants Shanna Milton and Shana Milton,
by next friend Shanna Milton, by next friend Shana Milton; Willie D. Harris, Dr.;
on Behalf of Himself and Infant Mark Neil, by next friend Mark Neil; Bobbie Ray
Cheeks, on Behalf of Infant Bobbie Ray, Jr., by next friend Bobbie Ray, Jr.
lllllllllllllllllllllPlaintiffs - Appellees
Lee Nayles, Dr.; on Behalf of Himself and Infant Jon Nayles, by next friend Jon Nayles
lllllllllllllllllllllPlaintiff
-3-
Terry Alexander
lllllllllllllllllllllPlaintiff - Appellee
v.
Bill Clinton, Governor of the St. of AR; Individually
lllllllllllllllllllllDefendant
Arkansas State Board of Education; Arkansas State Board of Education,
lllllllllllllllllllllDefendants - Appellants
Jeff Starling, Member, Arkansas State Board of Education; Earle Love, Member,
Arkansas State Board of Education; Robert L. Newton, Member, Arkansas State
Board of Education; L. D. Harris, Member, Arkansas State Board of Education;
Harry P. McDonald, Member, Arkansas State Board of Education; Alice L.
Preston, Member, Arkansas State Board of Education; Elaine Scott, Member,
Arkansas State Board of Education; Walter Turnbow, Member, Arkansas State
Board of Education; Nancy Wood, Member, Arkansas State Board of Education;
Camden, AR School District No. 35, The Board of Education of the, A Public
Body Corporate; Camden, AR Housing Authority, The Board of Directors of the,
A Public Body Corporate; Camden, AR, City of, A Public Body Corporate;
Harmony Grove, AR School District, The Board of Education of the, A Public
Body Corporate; Burton Burton, Director, Arkansas Department of Education
lllllllllllllllllllllDefendants
v.
Camden, AR Fairview School District, A Public Body Corporate
lllllllllllllllllllllDefendant - Appellee
____________
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Appeals from United States District Court
for the Western District of Arkansas - El Dorado
____________
Submitted: December 11, 2019
Filed: December 31, 2020
____________
Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
____________
ERICKSON, Circuit Judge.
Camden-Fairview School District, Hope School District No. 1A, Junction City
School District, and Lafayette County School District (“the Districts”) sought
modification of existing desegregation consent decrees to allow their exemption from
Arkansas’s Public School Choice Act. Ark. Code. Ann. § 6–18–1906 (2017). The
district court1 granted the Districts’ motions and modified the consent decrees to
explicitly limit the transfer of students between school districts. The Arkansas
Department of Education appealed, alleging that the modification imposed an
impermissible interdistrict remedy. We have jurisdiction under 28 U.S.C. § 1291.
Because there was a substantial change in Arkansas law after the consent decrees
were enacted and the district court’s modification was not an impermissible
interdistrict remedy, we affirm.
1
The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.
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I. Background
A. Consent Decrees
A 1960’s court order required Junction City School District (“Junction City”)
to consolidate and integrate, but compliance with the order was halting and half-
hearted and the school remained effectively segregated for years. In response to the
situation, the United States Department of Justice and Junction City entered a 1970
intradistrict consent decree requiring the reassignment of students on a non-racial and
non-discriminatory basis. The 1970 consent decree remains in effect. Under its
terms, Junction City is enjoined from maintaining segregated student assignments,
homerooms, activities, or bussing.
Hope School District No. 1A (“Hope”) entered an intradistrict consent decree
in 1990 to “remedy any past discrimination based upon race” and “prevent any like
discrimination from occurring in the future.” The consent decree enjoins Hope from
“engaging in any policies, practices, customs or usages of racial discrimination” in
any school operations. Hope must “maintain a unitary, racially nondiscriminatory
school system wherein all schools are effectively and equitably desegregated and
integrated.”
In 1993, Lewisville School District entered into an intradistrict consent decree
that now binds Lafayette County School District (“Lafayette County”). The consent
decree prohibits Lafayette County “from allowing a racially discriminatory
environment to exist within the school district” and requires the district to “maintain
a unitary, racially non-discriminatory school system wherein all schools are
effectively and equitably desegregated and integrated.” Lafayette County must also
maintain a desegregation and integration policy that “promotes pupil and staff
integration rather than . . . passive acceptance of desegregation between students of
all races.”
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Camden-Fairview School District (“Camden-Fairview”) is bound by a 1990
interdistrict consent decree entered into by the Fairview School District (“Fairview”)
and the Harmony Grove School District (“Harmony Grove”). Paragraph 1(C) of the
1990 decree requires Harmony Grove to maintain an open admission policy for non-
resident black students and forbids the transfer of white students from Fairview
without Fairview’s written permission. Both school districts must “refrain from
adopting student assignment plans or programs that have an interdistrict segregative
effect on either district” and “work cooperatively to create interdistrict polices and
programs to end the ravages of segregation.” In 2001, Camden-Fairview and
Harmony Grove moved the district court to grant unitary status but stated that the
provisions of paragraph 1(C) “shall remain in full force and effect to prevent future
‘white flight.’” The court granted the districts unitary status in 2002 but maintained
paragraph 1(C)’s restrictions. In 2010, the court found paragraph 1(C) still
applicable.
The district court retained jurisdiction over all four cases to ensure “compliance
with the spirit and terms of” the decrees and to enforce its orders.
B. Changes in the Law
In 1989, Arkansas adopted the Arkansas School Choice Act of 1989 (“1989
Act”), which allowed children to apply to attend a nonresident school district. See
Ark. Code Ann. § 6–18–206 (repealed in 2013). The 1989 Act limited a student’s
ability to “transfer to a nonresident district where the percentage of enrollment for the
student’s race exceeds that percentage in his resident district.” Id. The law remained
in effect until 2013, when it was expressly repealed by the Arkansas Public School
Choice Act of 2013 (“2013 Act”). Ark. Code. Ann. § 6–18–1906 (2013). The 2013
Act allowed for students to transfer to nonresident school districts but did not bar
segregative transfers. Instead, the 2013 Act allowed school districts to declare
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themselves exempt if participating in school choice would conflict with an existing
federal-court desegregation plan or order.
Two years later, Arkansas enacted the Public School Choice Act of 2015
(“2015 Act”), which eliminated a school district’s ability to declare itself exempt
from participating in school choice. Ark. Code. Ann. § 6–18–1906 (2015). Under
the 2015 Act, a district seeking an exemption was required to submit proof of an
active desegregation order or plan to the Arkansas Department of Education (“the
Department”). If a district submitted proof, the terms of the order or plan would
govern. In 2017, Arkansas amended the 2015 Act (“2017 Amendments”) to require
districts seeking exemptions to submit proof of a desegregation plan or order “that
explicitly limits the transfer of students between school districts.” Ark. Code. Ann.
§ 6–18–1906 (2017).
C. Current Litigation
Junction City, Hope, and Camden-Fairview applied for exemptions from school
choice each year from 2013 to 2017. Lafayette County took part in school choice for
the 2013-2014 school year but, after losing thirty non-black students to interdistrict
transfers, applied for an exemption due to segregative impact. All of the Districts
received exemptions from 2014 to 2017. The Districts applied for exemptions for the
2018-2019 school year but were denied. As a result, they were required to participate
in school choice. The Districts filed motions for declaratory judgment, clarification
of previous orders, or modification of previous orders. They argued that participating
in school choice would have a segregative impact and cause them to violate existing
desegregation orders.
After a hearing, the district court granted the Districts’ motions to modify the
consent decrees to prohibit segregative, interdistrict transfers. While Camden-
Fairview had been declared unitary, the court determined that the remaining
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desegregation obligations of paragraph 1(C) allowed modification. The court found
that the repeal of the 1989 Act and the enactment of the 2017 Amendments were a
significant change in law. Based on their language and the context surrounding the
decrees’ adoption, the court determined that the decrees were intended to prohibit any
racial discrimination within the Districts. The court modified the consent decrees to
“explicitly prohibit the segregative inter-district transfer of students from [the
Districts] to other school districts, unless such a transfer is requested for education
or compassionate purposes and is approved by [the Districts’] school board[s] on a
case-by-case basis.” The Department appeals the district court’s modification orders.
II. Discussion
We review the district court’s decision to modify a consent decree for abuse of
discretion. Davis v. Hot Springs Sch. Dist., 833 F.3d 959, 963 (8th Cir. 2016). We
will find an abuse of discretion only where a court’s decision was based on erroneous
legal conclusions or clearly erroneous factual findings. Parton v. White, 203 F.3d
552, 556 (8th Cir. 2000). Where possible, courts should interpret the parties’ intent
from the consent decree’s unambiguous terms. Pure Country, Inc. v. Sigma Chi
Fraternity, 312 F.3d 952, 958 (8th Cir. 2002). However, the circumstances and
context surrounding the order cannot be ignored. United States v. Knote, 29 F.3d
1297, 1300 (8th Cir. 1994); see also Mays v. Bd. of Educ. of Hamburg Sch. Dist., 834
F.3d 910, 918 (8th Cir. 2016). “This is because a consent decree is a peculiar sort of
legal instrument that cannot be read in a vacuum. It is a kind of private law, agreed
to by the parties and given shape over time through interpretation by the court that
entered it.” Knote, 29 F.3d at 1300 (cleaned up). We give a large measure of
deference to the interpretation of the district court that entered the consent decree.
Id.-9-
A. Substantive Change in Law
The Department alleges that the district court erred in modifying the underlying
consent decrees. The Department argues that, because the original decrees do not
discuss interdistrict transfers, the repeal of the 1989 Act and enactment of the 2017
Amendments are not a substantial change in circumstances supporting modification.
Consent decrees may be modified under Federal Rule of Civil Procedure 60(b).
Smith v. Bd. of Educ. of Palestine-Wheatley Sch. Dist., 769 F.3d 566, 570 (8th Cir.
2014). Modifying a consent decree may be necessary where the laws or facts at issue
at the time of issuance have changed or new ones have arisen. Pasadena City Bd. of
Educ. v. Spangler, 427 U.S. 424, 437 (1976); Davis, 833 F.3d at 963–64.
“Modification may be appropriate when changed factual conditions make compliance
with the decree substantially more onerous, a decree proves to be unworkable because
of unforeseen obstacles, or enforcement of the decree without modification would be
detrimental to the public interest.” Parton, 203 F.3d at 555.
The party seeking modification must establish a significant change in
circumstances warranting revision of the decree. Smith, 769 F.3d at 570–71. If the
moving party shows a significant change in circumstances, the court then considers
if the proposed modification “is suitably tailored to the changed circumstances.” Id.
at 571. Modification should not be granted where a party relies on events that were
anticipated when the decree was entered. Mays, 834 F.3d at 919. The movant must
show that the change in law actually affects the section of the consent decree at issue.
Davis, 833 F.3d at 964.
The district court found that the repeal of the 1989 Act and the subsequent
enactment of the 2017 Amendments were a significant change in law that allowed for
modification of the consent decrees. The court examined the underlying orders and
determined that the consent decrees “clearly intended to prohibit any racial
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discrimination occurring within” the Districts, “including preventing student transfers
which result in segregation of [the Districts’] student body.” The court specifically
found that the original consent decrees did not explicitly bar interdistrict transfers
because the 1989 Act already prohibited transfers where there was a segregative
impact or, in the case of Junction City, such transfers were not allowed in Arkansas
when the decrees were entered. The court determined that the 2017 Amendments’
requirement that a court order explicitly bar interdistrict transfers presented an
unforeseen obstacle making the consent decrees unworkable.
We agree that the laws influencing the consent decrees have clearly changed
since the Districts entered into the agreements. 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. 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.
See Knote 29 F.3d at 1300 (stating that we cannot ignore the context in which a
consent agreement was entered).
In crafting its modification order the district court also took notice of
segregative issues stemming from the State’s inaction in the face of white flight. The
court heard evidence about the interdistrict transfers’ effect on the Districts, including
Lafayette County’s loss of thirty non-black students in the only year it did not receive
an exemption from participating in school choice. In Edgerson on Behalf of
Edgerson v. Clinton, we stated that district courts are “uniquely situated to appraise
the societal forces at work in the communities where they sit.” 86 F.3d 833, 838 (8th
Cir. 1996) (cleaned up). These appraisals include determining whether transfer
policies caused white flight. See id. While the court in Edgerson did not find that
the transfer policies had caused white flight, id. at 837, segregative interdistrict
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transfers in this case had already negatively affected the Districts. It was not
improper for the district court to consider these facts in its determination.
The dissent seeks to minimize the evidence of white flight that was before the
district court. Aside from one district (Junction City), which had only private school
students requesting interdistrict transfers, the Department put forth limited evidence
regarding private school students requesting transfers. In particular, the Department
pointed only to two other private school families making such requests, both located
in Camden-Fairview. The Department did not present evidence regarding the number
of transfer requests by private school students in either Hope or Lafayette County.
The evidence in the record is contrary to the dissent’s assertions that there are
“no facts” to support a finding of a white flight problem in Junction City and that
interdistrict transfers would have little to no impact on Camden-Fairview’s and
Hope’s racial demographics. Multiple superintendents with decades of experience
in southern Arkansas schools testified that white flight would be a problem in
Junction City. As to the other Districts, all fifteen students requesting interdistrict
transfers in Camden-Fairview were from non-black students. The former
superintendent of Camden-Fairview (the superintendent when the district was
declared unitary) testified that the 1989 Act’s interdistrict transfer prohibition was
“critical” to the district achieving unitary status.
Of the 70 interdistrict transfer requests from students in Hope, 68 of them were
from non-black students. Hope’s superintendent testified that the percentage of non-
black students making interdistrict transfer requests did not surprise him because he
had discussions with white parents as to the reasoning why the parents wanted to
move their children to a different school district. The reasons included, in part,
because there was nobody in the child’s grade to date; there was nobody to invite for
sleepovers; and a disagreement with the morals of the student body. The dissent
incorrectly focuses on the fact that only 23 students actually transferred from Hope.
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The lower transfer rate was because the other students’ requests were denied by the
receiving school districts. But for the actions of other school districts denying
applications, Hope could have lost 3% of its non-black student body, the maximum
allowed under Arkansas law, in its very first year of school choice participation.
Both school years Lafayette County participated in school choice, Lafayette
County lost the maximum 3% of its non-black student body allowed under the law,
or very close to it. During the 2013-2014 school year, it lost over 30 of its students
to interdistrict transfers. Each one of the transferring students was white. During the
2018-2019 school year, after its application for an exemption from school choice was
denied, 35 students requested interdistrict transfers. Once again, each one of the
transferring students was white. All but one of the students was accepted by other
school districts.
The district court did not abuse its discretion in considering and crediting
evidence of white flight when it determined that a substantial change in circumstances
had occurred warranting modification of the consent decrees.
B. Interdistrict Remedy
The Department asserts that, even if the repeal of the 1989 Act and enactment
of the 2017 Amendments qualify as a substantial change in the law, the district
court’s modification is still an impermissible interdistrict remedy. The Department
essentially argues that because the modification prohibits the Districts from allowing
their students to make segregative transfers, the court’s modification binds other
school districts. We reject this argument.
A court cannot order an interdistrict remedy without showing an interdistrict
violation. Edgerson, 86 F.3d at 837 (citing Milliken v. Bradley, 418 U.S. 717, 745
(1974) (Milliken I)). A violation is interdistrict if it “caused segregation between
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adjoining districts.” Missouri v. Jenkins, 515 U.S. 70, 94 (1995). Interdistrict
remedies occur when a district court restructures or coerces local governments or
their subdivisions. Liddell v. Missouri, 731 F.2d 1294, 1308 (8th Cir. 1984) (citing
Hills v. Gautreaux, 425 U.S. 284, 298 (1974)).
We have not found an interdistrict remedy where the district court’s action does
not threaten autonomy of a separate governmental body. In Liddell, the court
required the State to pay the cost for voluntary interdistrict transfers. Id. We stated
that requiring the State to bear the transfer costs “does not threaten the autonomy of
local school districts; no district will be coerced or reorganized and all districts retain
the rights and powers accorded them by state and federal laws.” Id. Here, the district
court’s remedy does not threaten the autonomy of any school district. The
modification’s only potential effect on other school districts is a possible decrease in
transfer requests from the Districts’ students. Transfers out of the Districts may still
occur, no matter the race of the student, as long as there is an educational or
compassionate purpose and the request is approved by the student’s school board.
Limitations are placed only on the ability of a student to leave one of the Districts.
These requirements do not limit or set boundaries on other school districts’ rights or
powers to accept transfer students into their districts once the students have been
approved to transfer out of their original school. By restricting the conditions under
which students can transfer out of the Districts the district court has placed limitations
on only the Districts, not on any other school district in the state of Arkansas. The
district court has not restructured or coerced local governments, so the modification
of the consent decrees does not impose an impermissible interdistrict remedy.
Based on our review of the record, and the large degree of deference we must
give to the district court that entered the consent decree, we cannot find that the
district court abused its discretion in modifying the consent decrees.
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III. Conclusion
For the reasons stated herein, we affirm.
KOBES, Circuit Judge, dissenting.
The four Districts and nominal plaintiffs say they need a federal court order
exempting them from the 2017 Arkansas Public School Choice Act, which allows
parents to send their children to schools in districts where they do not live, or they
will be unable to comply with decades-old desegregation decrees. The decrees
prevent the Districts from operating dual school systems and racially discriminating
against students and faculty. With one limited exception, the four decrees do not
prohibit students transferring to another district.
In my view, the district court abused its discretion by modifying the decrees.
The overwhelming evidence shows that the decrees prevent the Districts from using
internal school operations to separate students based on race and treat them
unequally. Because these internal policies are unrelated to student transfers, the
Districts cannot point to a “section of the consent decree” “that the change in the law
has an actual effect on.” Davis v. Hot Springs Sch. Dist., 833 F.3d 959, 964 (8th Cir.
2016). In fact, each school superintendent testified that they could comply with the
Act and offer a nondiscriminatory school environment. Hr’g Tr. 146:23–147:6
(Junction City); 176:1–6 (Lafayette); 42:5–12 (Camden-Fairview); 123:7–10,
124:1–9 (Hope).
The district court and the majority assume that the decrees sought to maintain
racial balance within each District and that interdistrict transfers jeopardize that
balance. The facts do not support either assumption. Testimony showed that school
choice transfers would not affect the Districts’ racial balance because the transferring
students were enrolled in private schools. E.g., Hr’g Tr. 145:4–7 (“Our demographics
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did not change.”). If the majority’s assumptions were correct, then two District
superintendents would not have agreed that they could “comply with th[e] order, []
even if [they] lose [] students to School Choice.” Hr’g Tr. 124:7–9, 146:23–147:6.
Instead of granting relief from the decrees, what really happened was the
district court used its equitable power to grant relief from otherwise valid Arkansas
law. This exceeded its remedial authority in two ways. First, a district court may not
invoke its “equitable power to fashion a remedy to correct a condition unless it
currently offends the Constitution.” Jenkins v. Missouri, 807 F.2d 657, 666 (8th Cir.
1986) (en banc) (citation omitted). The district court declined to identify a
constitutional violation caused by the change to Arkansas law. Second, the remedy
itself violates the Constitution because it requires the Districts to deny transfers solely
on the basis of race without a compelling interest. See Parents Involved in Cmty.
Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007). The Districts did not advance
a compelling interest. They have not and cannot show the orders continue to remedy
past effects of segregation, and the record does not support that school choice
transfers are a substantial cause of segregation.
I.
The district court found that the new requirement under the Act was a
significant change in circumstances because requiring the desegregation decrees to
“explicitly bar inter [] district transfers present[ed] an unforeseen obstacle that
cause[d] the [decrees] to be unworkable.” Add. 12. The decrees have nothing to do
with interdistrict transfers or maintaining the racial balance of each District, though,
so there are no grounds that warrant modification. Plus, the Districts can comply with
the Act and operate integrated schools in a non-discriminatory manner.
A.
The first step is to determine what problems the decrees address and what they
require of the Districts. The overwhelming evidence shows that these decades-old
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decrees prevented racial discrimination in internal school operations and ended
segregated, dual-school systems within the Districts. That is the de jure segregation
that the decrees sought to remedy. The majority finds that the decrees implicitly
require the Districts to preserve their racial demographics. I respectfully disagree.
In Junction City’s 1970 decree, the district court found that, despite an earlier
desegregation plan, “many of the homerooms and classes in the high school
remain[ed] all-black and all-white,” Add. 74, and that “the black students [in the
elementary school] [we]re segregated by classroom and taught by black instructors,”
id. Junction City had also not taken any steps to desegregate its school bus routes,
so the district court “grant[ed] that part of the plaintiff’s motion concerning
desegregation of classroom facilities” and the part “concerning [bus] transportation
of students.” Add. 75.
In the late 1980s, Hope and Lafayette teachers and parents sought an end to
racially discriminatory practices against staff and students. The decrees prohibit the
Districts from “engaging in any policies, practices, customs or usages of racial
discrimination in any of its school operations including, but not limited to, faculty
assignments, student assignments, and the treatment of black and other minority
pupils within the school system.” Add. 79; see also Add. 91. Among other school
operations, the decrees require use of “objective, nondiscriminatory, job-related”
criteria in all employment matters, Add. 80, 91, “discipline policies which do not
adversely and disparately impact” black students, Add. 85, 94, and “[a]ll classes,
programs and/or activities of the district shall be desegregated and integrated in fact,”
see Add. 84, 94.
In Camden-Fairview, parents brought suit to end racially discriminatory
practices within three school districts (Camden, Fairview, and Harmony Grove), the
City of Camden, and the Housing Authority of Camden. In the 1991 order, the court
required Harmony Grove and the soon-to-exist Camden-Fairview to “refrain from
adopting student assignment plans or programs that have an interdistrict segregative
effect” in their districts. Add. 99. In the December 2001 order, the district court
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recognized that the principal “desegregation issues were resolved by consolidation
of” the dual districts into “the Camden Fairview School District.” Add. 103. This
resulted in “student assignments without racially identifiable schools and
affirmatively avoids intra-school desegregation.” Add. 103. This order, and the one
declaring Camden-Fairview unitary, still prohibited white students in Camden-
Fairview from transferring to Harmony Grove.
The district court properly found that the Junction City, Hope, and Lafayette
decrees “contain[] no language expressly prohibiting inter [] district student
transfers.” Add. 11. The text and history of all four decrees show that the principal
issue was not white students migrating out of the Districts. Instead, they addressed
a different and more pervasive problem: using race in internal school operations to
keep the students and staff apart (separate schools, classrooms, and activities) and to
keep them unequal (using different diplomas, discipline, and criteria for staff
assignments, pay, and advancement). The majority states that the decrees are silent
on interdistrict transfers because the parties relied on the existing statutory framework
that prohibited them. But the Camden-Fairview decree demonstrates that if white
students transferring to a “whiter” school was an issue, desegregation decrees
addressed that problem—even after the 1989 Act.
The majority also claims that a “plain reading of the consent decrees shows that
they were intended to prohibit all forms of racial segregation,” Maj. Op. 11, and then
assumes that one student transferring to a district that has a student body with a
greater percentage of that student’s race is segregation.2 This implicitly finds that the
decrees require the Districts to preserve their racial demographics. But the Supreme
Court has explained that “[r]acial balance is not to be achieved for its own sake,” and
should only “be pursued when racial imbalance has been caused by a constitutional
2
The majority also speculates about what the Department of Justice would have
done had Arkansas law allowed interdistrict transfers. Maj. Op. 11. Notably, the
Department of Justice only brought the Junction City action. Even had it been
involved with the other actions, it is more likely that if multi-district segregation had
been an issue the decrees would have said so.
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violation.” Freeman v. Pitts, 503 U.S. 467, 494 (1992). The decrees speak to many
different kinds of racial segregation and discrimination, but racial imbalance between
different districts is not one of them. Absent text in the decrees relating to such a
violation and relief, the assumption that the decrees require the Districts to preserve
their racial demographics is wrong.
B.
The Districts have failed to show that a “significant change in circumstances
warrant[ed] revision of the decree.” Mays v. Bd. of Educ. of Hamburg Sch. Dist.,
834 F.3d 910, 918 (8th Cir. 2016) (emphasis added). The Supreme Court identified
five grounds that may warrant revision of a decree: (1) when changed factual
conditions make compliance with the decree substantially more onerous, (2) when the
decree proves to be unworkable because of unforeseen obstacles, (3) when
enforcement of the decree without modification would be detrimental to the public
interest, (4) if one or more of the obligations placed upon the parties has become
impermissible under federal law, and (5) when the statutory or decisional law has
changed to make legal what the decree was designed to prevent. Rufo v. Inmates of
Suffolk Cty. Jail, 502 U.S. 367, 388 (1992). The Districts only assert the second and
fifth grounds.3 Ultimately, they must point to a “section of the consent decree” “that
the change in the law has an actual effect on.” Davis, 833 F.3d at 964 (8th Cir. 2016).
The Districts cannot show that the decrees are unworkable due to changes in
Arkansas law. In Rufo, the Supreme Court gave two examples of unworkable
decrees. The first was New York State Ass’n for Retarded Children Inc. v. Carey,
706 F.2d 956, 971 (2d Cir. 1983), where a provision to rehouse thousands of patients
in “15 bed/10 bed” communities was logistically impossible to achieve with the
decree’s overall goal to empty unsanitary institutions as soon as possible. In the
3
Although the Districts contend that the district court considered “changes in
fact,” they only press the change in Arkansas law. Dist. Br. 18. In other words, they
claim that statutory law has changed and permits what the decrees sought to prevent.
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second, Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114, 1117 (3d Cir.
1979), the defendants were unable to meet the decree’s requirement to perform
180,000 health screenings in a year because eligible recipients turned down the
services, some recipients did not show up to the appointments, and not enough
doctors participated. In both examples, the defendants wanted a specific requirement
in the decree modified because they could not comply.
Here, the districts can comply with the decrees. The question is whether
allowing student transfers between districts interferes with the Districts’ obligations
to operate integrated schools and provide a nondiscriminatory atmosphere to their
students. I see no conflict; one does not affect the other. The district court implicitly
recognized this because instead of holding that the original decrees prohibited
interdistrict transfers, it modified the decrees to include that express prohibition. The
decrees are unambiguous: they prevent the Districts from using race to discriminate
in operating their schools. Each superintendent testified that the Act did not prevent
them from offering a nondiscriminatory school environment to students. Hr’g Tr.
146:23–147:6 (Junction City); 176:1–6 (Lafayette); 42:5–12 (Camden-Fairview);
123:7–10, 124:1–9 (Hope). The Hope and Camden-Fairview superintendents
explicitly agreed that they could “comply with th[e] order, [] even if [they] lose []
students to School Choice.” Hr’g Tr. 124:7–9 (Hope); 42:10–12 (Camden-Fairview).
There is simply no evidence to the contrary.
The district court erroneously concluded that because Arkansas law did not
allow interdistrict transfers in 1970, in the case of Junction City, Arkansas’s new
requirement that a desegregation decree order “explicitly bar inter [] district transfers
presents an unforeseen obstacle that causes the [District’s] Order to be unworkable.”
Add. 12. I agree that interdistrict transfers may have been unforeseen in 1970, but the
court never explains why it is an obstacle to a discrimination-free school district. It
assumes that interdistrict transfers will upset Junction City’s racial balance. No facts
support this assumption. There is no history of white flight because Junction City had
never before participated in school choice. And for the current school year, the five
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students seeking transfers attended private—not public—schools, so Junction City’s
“demographics did not change.” Hr’g Tr. 145:4–7.
The district court’s conclusions about Hope, Lafayette, and Camden-Fairview
are similarly flawed. The Camden-Fairview decree’s express prohibition on
interdistrict transfers to Harmony Grove shows that the original decrees could have,
but did not, prohibit all interdistrict transfers. It defies the rules of ordinary contract
interpretation to conclude otherwise. See United States v. Knote, 29 F.3d 1297, 1299
(8th Cir. 1994) (for consent decrees “we basically look to rules of contract
interpretation.”). The plaintiffs in the Hope and Lafayette actions had reason to know
about the Camden-Fairview litigation because the three cases were brought around
the same time and they shared the same attorney.4
The record also shows that interdistrict transfers would have little to no impact
on Camden-Fairview and Hope’s racial demographics.5 Camden-Fairview’s
superintendent testified that only 15 students (out of 2,700) applied for a transfer.
Like Junction City, some were not enrolled in public schools and could not change
the racial demographics. Hr’g Tr. 50:5–51:9. Hope’s superintendent stated that the
total number of transfers accounted for 1.3% of the district’s enrollment but, again,
some of those transfers “were [currently] attending private schools.” Hr’g Tr.
127:20–128:9. At bottom, only seven Hope students out of 2,447 transferred. Hr’g
Tr. 133:4–14.
4
This also reinforces the conclusion that the Hope and Lafayette decrees were
not meant to address interdistrict segregative effects. Had that been an issue in the
Hope and Lafayette districts, it seems likely counsel would have sued the third-party
districts and included a similar provision in the decrees as he did in Camden-
Fairview’s decree.
5
Lafayette claims it lost 30 non-black students in the one year it participated in
school choice. It is undisputed that 30 school choice transfers exceed the statutory
3% cap for that year (21 students from 689 enrolled students). Ark. Dep’t of Educ.,
Lafayette Cty. Sch. Dist. 2013-2014, https://bit.ly/2xhvOKY (last accessed Oct. 23,
2020). Even if 21 “non-black” students transferred, Lafayette still has not presented
an “obstacle” to providing a nondiscriminatory education to its students.
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Without citation, the majority claims that the district court “took notice of the
segregative issues stemming from the State’s inaction in the face of white flight.”
Maj. Op. 11. Yet, the district court never mentions white flight. The majority
attempts to insulate its conclusion by pointing to Edgerson’s direction that a district
court’s assessment of the “societal forces at work in the communities where they sit”
deserves deference. Edgerson on Behalf of Edgerson v. Clinton, 86 F.3d 833, 838
(8th Cir. 1996); Maj. Op. 11. But this does no work because the district court did not
make any factual findings, let alone findings that “segregative interdistrict transfers
had already negatively affected the Districts.” Maj. Op. 11. Assumptions, especially
those contradicted by the record, deserve no deference.
II.
The district court granted unwarranted equitable relief by prohibiting
“segregative” interdistrict transfers “unless such a transfer is requested for education
or compassionate purposes and is approved by [the Districts’] school board on a case-
by-case basis.” Add. 18. The district court exempted the Districts from Arkansas’s
school choice law because it creates a “genuine conflict under active desegregation
orders . . . that explicitly limits the transfers between school districts.” Ark. Code
Ann. § 6-18-1906(a)(2). Notably, this remedy does not relieve the Districts from
performing a stale or unworkable condition in the decrees; it creates an express
conflict (and the only conflict) with Arkansas law. In other words, it does the same
thing as declaring that the Arkansas law is unconstitutional as to these Districts
without deciding whether the law has a current segregative effect or violates equal
protection. By granting this relief, the district court transgressed a “bedrock principle
that federal-court decrees exceed appropriate limits if they are aimed at eliminating
a condition that does not violate the Constitution or does not flow from such a
violation.” Missouri v. Jenkins, 515 U.S. 70, 97–98 (1995).
The district court’s remedy violates the limits of a federal court’s remedial
authority in two ways. Without identifying a constitutional violation, a district court
cannot impose a new remedy that supersedes state law. Jenkins, 807 F.2d at 666
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(“Federal courts may not invoke their equitable power to fashion a remedy to correct
a condition unless it currently offends the Constitution.”); Liddell v. Missouri, 731
F.2d 1294, 1305 (8th Cir. 1984) (“The remedy must therefore be related to ‘the
condition alleged to offend the Constitution.’” (citing Milliken v. Bradley, 433 U.S.
267, 280–281 (1977) (Milliken II)) (emphasis in original)); Edgerson, 86 F.3d at 837(same). Although the Districts requested that the court declare that the Act was
unconstitutional, the district court expressly declined to do so. Because the court
made no finding that the Constitution was violated, it erred by modifying the decrees.
That is why in Liddell, we reversed the district court’s order requiring Missouri to pay
for interdistrict transfers between the suburban counties. That relief was “not geared
to remedy the violation found within the city.” 731 F.2d at 1309.
The second error is that the district court’s remedy “must not create or
perpetuate a constitutional violation.” Little Rock Sch. Dist. v. Pulaski Cty. Special
Sch. Dist., No. 1, 56 F.3d 904, 914 (8th Cir. 1995). The Supreme Court has explained
that a desegregation decree “contemplating the substantive constitutional right to a
particular degree of racial balance or mixing is [] infirm as a matter of law.” Milliken
II, 433 U.S. at 281 n.14 (1977). The remedy does just that—sorting students solely
on whether the Districts’ racial balance would change. The Department of Education
fairly objects that “blanket race-based student assignments in public schools are not
‘narrowly tailored to the goal of achieving the educational and social benefits asserted
to flow from racial diversity’ and violate Equal Protection.” Dept. Br. 35.
“It is well established that when the government distributes burdens or benefits
on the basis of individual racial classifications, that action is reviewed under strict
scrutiny.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
720 (2007) (citation omitted). Because racial classifications are simply too
pernicious, “the school districts must demonstrate that the use of individual racial
classifications in the [school choice transfers] here under review is ‘narrowly tailored’
to achieve a ‘compelling’ government interest.” Id. Remedying the effects of past
intentional discrimination is a compelling interest, but once a school “achieve[s]
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unitary status, it ha[s] remedied the constitutional wrong that allowed race-based
assignments.” Id. at 721. The Court emphasized that “[t]he harm being remedied by
mandatory desegregation plans is the harm that is traceable to segregation, and that
the Constitution is not violated by racial imbalance in the schools, without more.”
Id. (citation omitted).
The district court’s remedy is a “categorical race-based limitation” on
interdistrict transfers. Teague v. Cooper, 720 F.3d 973, 975 (8th Cir. 2013). The
prohibition on interdistrict transfers is based solely on the student’s race, and it seeks
to preserve racial balance within a school district. It does not matter that a federal
court, rather than Arkansas, ordered the remedy. See Milliken II, 433 U.S. at 281
n.14. To satisfy the Constitution, the Districts must provide a compelling interest.
The Districts advance two compelling interests. They claim that the
“continuing legacy of de jure segregation” justifies the use of race. Dist. Br. 38. The
majority acknowledges that Camden-Fairview, like the Jefferson County schools in
Parents Involved, has achieved unitary status. Maj. Op. 12. Because Camden-
Fairview has remedied that wrong, this is not a compelling interest. Hope, Lafayette,
and Junction City have not achieved unitary status, but there is no evidence the
modification is tailored to “the harm that is traceable to segregation.” Parents
Involved, 551 U.S. at 721. The district court’s remedy reinstates the 1989 Act’s
prohibition on “segregative” interdistrict transfers that was repealed and replaced in
2013. The Arkansas General Assembly acted because a federal district court declared
that the provision “violates the Equal Protection Clause . . . and [] permanently
enjoin[ed] the State of Arkansas from applying” it. Teague ex rel. T.T. v. Arkansas
Bd. of Educ., 873 F. Supp. 2d 1055, 1068 (W.D. Ark. 2012). Any harm here is only
traceable to Arkansas’s attempt to comply with federal law, so the district court’s
modification does not remedy the effects of past segregation.
The Districts also argue that the “potential for white flight” that impedes their
ability to comply with the decrees is a compelling interest. Dist. Br. 38. If the school
choice transfers caused re-segregation, that may be a compelling interest. See United
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States v. Lowndes County Bd. of Ed., 878 F.2d 1301 (11th Cir. 1989) (interdistrict
transfers causing 9.3% cumulative difference in white enrollment violated
desegregation order). But that is not this case. Transfers of students that attend
private schools have no impact on the Districts’ racial demographics. And other
evidence showed that school choice transfers would have little impact on any
district’s racial balance. The Districts failed to show that school choice transfers are
“a substantial cause of interdistrict segregation.” Edgerson, 86 F.3d at 837.
By modifying the consent decrees, the district court exceeded its equitable
powers by failing to identify a constitutional violation related to the remedy and
creating an unconstitutional remedy that denies interdistrict transfers based solely on
the student’s race.
III.
Unfortunately, the majority fails to heed the Supreme Court’s warning that “the
dynamics of institutional reform litigation differ from those of other cases.” Horne
v. Flores, 557 U.S. 433, 448 (2009). Sometimes defendants are “happy to be sued and
happier still to lose,” because they can agree to injunctions that “bind state and local
officials to the[ir] policy preferences” and “improperly deprive future officials of their
designated legislative and executive powers.” Id.The Districts are happy to lose: Junction City, for example, is an adjudged
constitutional violator and may now grant or deny transfers based on race. The
Districts may grant a transfer “requested for educational or compassionate purposes,”
and the Districts acknowledge that of the granted transfers, most have been
segregative. Add. 18; Oral Arg. 20:35. And according to the Districts, “[s]chool
boards have arrived at the correct conclusions perhaps faster than some of the
parents,” so they are better positioned to make these decisions, even race-based
decisions. Oral Arg. 21:37. With such fuzzy parameters, I take no comfort that the
Districts, who initially violated the Constitution and necessitated the original decrees,
now have the unfettered discretion to grant or deny transfers based on race.
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The Districts’ “friendly adversary relationship with the plaintiffs” has paid off.
Jenkins, 515 U.S. at 79 (reversing district court orders that increased school district’s
reliance on continued federal court supervision). These decrees sat dormant for
decades until the Districts joined with nominal plaintiffs to seek an exemption to
generally applicable Arkansas law. With a new federal court decree, they upset
Arkansas’s policy choice to allow parents to choose what school their children will
attend.
The district court’s remedy is antithetical to the goals of desegregation cases:
achieving integrated schools and ending federal court supervision. This is a step back
that unnecessarily restricts the legitimate policy choices of the people of Arkansas,
expressed through the legislature. I respectfully dissent.
______________________________
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