United States District Court, E.D. Arkansas, Western Division
LAKESHA DOE, Parent, et al. PLAINTIFFS
ARKANSAS DEPARTMENT OF EDUCATION, et al. DEFENDANTS
MARSHALL JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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
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
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 at ¶ 139.
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
at ¶ 140. 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 at ¶
146. In 2015, the Department approved another major
expansion in E-STEM's enrollment, which will divert more
money from LRSD. No. 6 at ¶ 148.
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 at ¶ 168. 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 at ¶ 168. 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
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.
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 at ¶ 157. 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 at
¶ 158. 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
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
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.
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.