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Doe v. Arkansas Department of Education

United States District Court, E.D. Arkansas, Western Division

September 28, 2016

LAKESHA DOE, Parent, et al. PLAINTIFFS
v.
ARKANSAS DEPARTMENT OF EDUCATION, et al. DEFENDANTS

          ORDER

          D.P. MARSHALL JR. UNITED STATES DISTRICT JUDGE.

         1. Did race play some part? More specifically, did race partly motivate the Arkansas Department of Education, the Commissioner, or the State Board members in expanding the number of charter schools in Little Rock, in administering various federal grant programs, or in deciding to take over the Little Rock School District? Plaintiffs say it did. Their amended complaint explains their view in more than seventy pages, and this detailed pleading is helpfully supplemented (from both sides) with many attached public records and documents, which the Court has considered. Stahl v. United States Department of Agriculture, 327 F.3d 697, 700 (8th Cir. 2003). This case just started. The State Defendants have moved to dismiss, while LRSD has answered and will address the facilities claims against it in due course on the merits.

         The governing legal standard is plausibility: the Plaintiffs must allege enough facts against the State Defendants to show that racial motivation is not merely possible, but plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must look past legal conclusions. And while eloquent arguments, passionately made, such as Plaintiffs' responding brief, have their rightful place, the law here focuses on what John Adams famously called the stubborn things -the facts.

         Of course it's possible. It's conceivable that, somewhere in all this, someone had a foul intention -the District should be taken over, or Ms. Springer and Dr. Ross shoved out of office with the rest of the District Board, or charter schools expanded, or federal money mismanaged - to benefit white students and to harm black students, their parents, and citizen servants such as Springer and Ross. It's possible.

         And there's no real question about disproportionate effect: more than 65 % of LRSD students are black; a majority of the dissolved Board was black; and the students at the growing charter schools in Little Rock are (to generalize) whiter and wealthier than LRSD's students. But the settled precedent is clear; discriminatory effects alone are insufficient to show discriminatory intentions. Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 265 (1977).

         What's missing are pleaded facts that show the intent to discriminate based on race, facts that show foul thoughts becoming harmful actions. Plaintiffs have pleaded plausibly that those holding the people's power in Arkansas's Executive Branch have decided to shake up public education in Little Rock by various means and, in the borning at least, those decisions have fallen hardest on these Plaintiffs and others similarly situated. Those facts, though, don't offend the Constitution or federal law. The fullness of time will show whether the decisions were wise. That, in any event, isn't what this Court must measure. Letting a doubtful case proceed is often the better course, but not where the governing law is clear and all the facts simply do not measure up. At the threshold, Plaintiffs haven't offered enough facts showing a plausible racial motivation behind any of the challenged decisions. Accepting all the facts alleged as true, and adding all the reasonable inferences from them, the amended complaint fails against the State Defendants.

         2. Plaintiffs' allegations cluster in three groups: the State Board of Education's allowing more and more charter schools in LRSD; the Board's oversight of federal programs; and the Board's takeover of LRSD.

         • Charter Schools. Plaintiffs say the charters hurt LRSD schools by siphoning the best students and the state funds that follow them. This leaves LRSD schools poorer and blacker that they'd be without the competing charters.

         Things began in 2008. That year, defendant Vicki Saviers played a leading role in opening E-STEM Public Charter School in downtown Little Rock. No. 6 at139. Saviers served on E-STEM's board until she became a member of the State Board in 2010. The Arkansas Department of Education and the State Board approved three charter applications by E-STEM's founders with a total enrollment of 856 students. E-STEM was much whiter than LRSD. Consider some round numbers: in the 2008-2009 school year, LRSD was 22% white and 68% black; E-STEM was 38% white and 54% black; and in the 2010-2011 school year, LRSD was 21 % white and 67% black, while E-STEM was 41% white and 48% black. No. 6 at140. The Department excepted E-STEM from a law requiring public schools to provide an alternative learning environment for students with discipline issues. No. 6 at ¶144. In 2011, after Saviers had been appointed to the State Board, she moved to approve E-STEM's application to increase its enrollment by 102 students. The State Board approved. No. 6 at 145. And because public money follows the students, LRSD lost more than $8 million in 2008-2009 and more than $12 million in 2010-2011 to charter schools. No. 6 at146. In 2015, the Department approved another major expansion in E-STEM's enrollment, which will divert more money from LRSD. No. 6 at148.

         E-STEM isn't the only example of charter expansion. In late 2013, the Department's new Charter Authorizing Panel approved a new school, Quest Middle School, in west Little Rock. No.6 at168. Quest was approved to serve 490 students in grades 6-12. LRSD appealed the Department's decision to the State Board. In early 2014, the Board approved the Quest application by a vote of five to four. No. 6 at168. Saviers and Diane Zook voted to approve. Saviers, as noted, had a history with E-STEM; and Zook's nephew, Gary Newton, had made a presentation supporting Quest. No. 6 at ¶ 168. Like E-STEM, Quest was much whiter than LRSD. In Quest's first school year, LRSD was, in round numbers, 18% white and 66% black; Quest was 63% white and 23% black. No. 6 at ¶ 269. Plaintiffs say that the Department and the State Board's approval of Quest "constituted intentional discrimination promoting segregation of students by race." No. 6 at ¶ l 76.

         • Federal Programs. Certain federal regulations aim to reduce achievement gaps among racial groups by ensuring that all students meet particular testing standards. No. 6 at ¶ 152. In June 2012, Arkansas got these requirements waived in exchange for, among other things, implementing plans to reduce these gaps by improving the quality of instruction. The State got the waiver renewed in 2014 and 2015. No.6 at ¶ 252. And under the waivers, the Department is held accountable only for performance standards that aren't race-specific. No. 6 at ¶ 152. Plaintiffs say this creates a tendency to ignore low achievement by black students. The waivers also included the use of School Improvement Grants to fix achievement gaps. No.6 at ¶ 253. But Plaintiffs say this grant program wasn't properly followed. The U.S. Department of Education cited the Arkansas Department of Education twice in 2013 for harming certain schools by failing to follow the program. No. 6 at ¶ 253. Five of those six schools were later identified as being in "academic distress." No. 6 at ¶ 153. This label's significance will become clear.

         There was another hangup in the State's application of federal programs. If more than half of a school's students are eligible for free or reduced price lunches, then the school is eligible for Title I funds. Most schools in LRSD receive these funds. No.6 at157. But in 2014-2015 and many other recent academic years, the Department didn't make LRSD's share of Title I funds available until much of the school year had passed. This hurt the schools' ability, the Plaintiffs say, to help black students who benefitted from the funds. No. 6 at158. LRSD schools hurt by the late distribution of these federal funds included all six schools later identified as being in academic distress. No. 6 at ¶ 159.

         • State Takeover. Plaintiffs allege that racial discrimination partly motivated the State's decision to take over the LRSD and that the step violated other constitutional rights. They say that former Superintendent Dexter Suggs was in cahoots with the State Board and various white civic leaders. Here's the story Plaintiffs tell.

         In 2003, the General Assembly enacted the "Arkansas Comprehensive Testing, Assessment, and Accountability Program Act." 2003 Ark. Acts 5287, 5295. This was one of the post-Late View reforms. Lake View School District No. 25 of Phillips County v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). The Act gave the State Board authority to classify school districts as being in "academic distress." 2003 Ark. Acts 5287, 5310. Under the Board's implementing regulations, a district was in academic distress if 75% or more of its students performed below a certain level. 005.19.03 Ark. Code R. § 3.02 (August 2003). Since those regulations were passed, LRSD has never met that definition of academic distress. No6at¶l38. The Act also authorized several different steps to manage a district in academic distress, including removing the superintendent and the school board. 2003 Ark. Acts 5287, 5314-15.

         In 2013, the General Assembly amended the academic distress standards, making them applicable to individual schools as well as whole districts. 2013 Ark. Acts 2274, 2275. The next year, the State Board appointed a special committee to review districts in academic distress. No. 6 at ¶ 177-78. Saviers was appointed chair. In April 2014, the State Board unanimously adopted emergency regulations implementing the new legislation. No. 6-1 at 22 & No. 25 at 80, 88-89." These regulations applied the academic distress threshold-which had since been changed from 75% to 49.5% under-achievement-to individual schools, as the new legislation required. No. 6-1 at 24. A ...


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