Milton v. Huckabee

          ORDER

          Susan O. Hickey United States District Judge

         Before the Court is the Camden-Fairview School District's (“Camden-Fairview”) Motion for Declaratory Judgment, or Alternatively, for Clarification of Previous Orders, or Alternatively, for Modification of Previous Orders. (ECF No. 262). Plaintiffs have filed a response in support of the motion. (ECF No. 264). A response in opposition to the motion has been filed by the Governor of the State of Arkansas, the Arkansas Department of Education (“ADE”), the Arkansas State Board of Education (“SBE”), and the Members of the Arkansas State Board of Education (collectively, “State Defendants”). (ECF No. 276). Both Plaintiff and Camden-Fairview have filed replies. (ECF Nos. 283, 284).

         I. BACKGROUND

         On December 16, 1988, Plaintiffs-a group of African-Americans residing in Ouachita County, Arkansas-filed this action on behalf of their school-aged children against State Defendants; the Board of Directors of the Camden Arkansas Housing Authority; the City of Camden, Arkansas; the Board of Education of the Camden, Arkansas School District; the Camden, Arkansas Fairview School District; and the Board of Education of the Harmony Grove School District. Plaintiffs' Complaint alleged that Defendants acted in concert to deny African-American children equal educational opportunities by establishing, maintaining and perpetuating racially discriminatory school systems. Among other forms of relief, Plaintiffs sought an order consolidating the three defendant school districts or an effective desegregation plan.

         On October 16, 1990, the Camden School District and Fairview School District were consolidated. On November 27, 1990, the Court entered a consent order (hereinafter the “Milton Order”) which provided, in pertinent part, that:

C. Harmony Grove shall maintain an open admission policy in regard to nonresident black students. Harmony Grove shall not permit the transfer of white students from Fairview into the district without the written permission of Fairview. Acceptance of transfer students by Harmony Grove is subject to existing space and transfer limitations. Harmony Grove will also refrain from engaging in any other act or conduct tending directly or indirectly to have a segregative impact in the Fairview School District. Any student transferring to Harmony Grove in compliance with this order and other legal requirements will be immediately eligible for all school activities without any of the limitations imposed by A.C.A. § 6-18-206.

(ECF No. 262-1, p. 2). The Milton Order further states as follows:

D. The consolidated Camden-Fairview School District and the Harmony Grove School District . . . are desirous of avoiding further litigation and controversy. While both of these districts are separate and autonomous and intend to operate independently in exercising governmental authority, these two districts agree that further costly litigation can be avoided by inter-district agreements. These agreements include but are not limited to the following:

1. Both school districts shall refrain from adopting student assignment plans or programs that have an inter-district segregative effect on either district.

Id. at 3. The Milton Order further states that this Court “will retain jurisdiction to supervise all aspects of this and subsequent orders of this Court until such time as this Court issues a declaration of unitary status.” Id.

         On May 8, 1991, the Court issued an order tentatively approving a settlement agreement between Plaintiffs, Camden-Fairview, and the State Defendants. (ECF No. 220). The Court entered a consent order declaring Camden-Fairview unitary on February 1, 2002 (ECF No. 254); however, the Court left certain desegregation obligations in place for Camden-Fairview and Harmony Grove, including paragraph C of the Milton Order as stated above. (See ECF No. 254, ¶ 3). The consent order further provided that State Defendants, the City of Camden, the Housing Authority of Camden, Harmony Grove School District, and Camden-Fairview had complied with the obligations imposed by the 1991 settlement agreement and court orders and dismissed them from the suit with prejudice.

         On December 14, 2009, an action was removed to this Court from the Circuit Court of Ouachita County, Arkansas, alleging that a student at Camden-Fairview was denied permission to transfer to Harmony Grove High School in violation of the Fourteenth Amendment of the United States Constitution, the Arkansas Constitution and Arkansas common law. See Lancaster v. Guess, No. 1:09-cv-1056. The parties to the Lancaster action later entered into a settlement agreement and jointly moved to dismiss, which was granted by the Court on July 26, 2010 (hereinafter the “Lancaster Order”). (ECF No. 262-5). The Lancaster Order states that the Court retains jurisdiction of the case for the sole purpose of enforcing the parties' settlement agreement and enforcing its orders in the present action. The Lancaster Order also reiterates that paragraph C, as stated above, from the Milton Order is still in effect.

         The Arkansas Public School Choice Act of 1989 (the “1989 Act”) was in effect at the time the parties executed the Milton and Lancaster Orders. The 1989 Act provided for a school choice program whereby a student could apply to attend a public school in a district that the student did not reside in, subject to certain limitations. The 1989 Act provided further that “[n]o student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in his resident district” and that “[i]n any instance where the foregoing provisions would result in a conflict with a desegregation court order, the terms of the order shall govern.” (ECF No. 262-2, §§ 11(a-b)).

         In 2013, the Arkansas Public School Choice Act of 2013 (the “2013 Act”) was enacted, expressly repealing the 1989 Act. The 2013 Act again allowed students to apply to attend a nonresident public school district. However, the 2013 Act did not contain the 1989 Act's limiting language barring segregative inter-district transfers.^[1] The 2013 Act allowed any school district to annually declare itself exempt from participating in school choice if said participation would conflict with the school district's obligations under a federal court's “desegregation plan regarding the effects of past racial segregation in student assignment” or a federal court order “remedying the effects of past racial segregation.” (ECF No. 262-5, p. 8). Any school district that made this declaration would be exempt from participating in school choice for that school year.

         In 2015, the Arkansas Public School Choice Act of 2015 (the “2015 Act”) was enacted, thereby amending the 2013 Act. The 2015 Act, among other things, eliminated the school districts' ability to declare themselves exempt from participating in school choice due to a conflict with existing obligations under a federal court's desegregation plan or order. Instead, the 2015 Act required that a school district wishing to be exempt from participating in school choice must submit proof to the ADE “that the school district has a genuine conflict under an active desegregation order or active court-approved desegregation plan with the [2015 Act.]” (ECF No. 262-9, p. 5). If the school district submitted proof of an order or plan to the ADE, the provisions of the order or plan would govern, thereby exempting the school district from participating in school choice.

         In 2017, the Arkansas General Assembly passed Act 1066 of the Regular Session of 2017 (the “2017 Act”), thereby amending the 2015 Act. The 2017 Act, among other things, amended the 2015 Act's language allowing school districts to seek an exemption from participating in school choice. Under the 2017 Act, school districts seeking to be exempt from participation in school choice must now submit proof to the ADE “that the school district has a genuine conflict under an active desegregation order or active court-approved desegregation plan that explicitly limits the transfer of students between school districts.” (ECF No. 262-10, p. 2) (emphasis added). The ADE evaluates school districts' applications for an exemption from school choice and determines whether to grant an exemption. The SBE decides any appeals of the ADE's decisions regarding school choice exemption applications.

         From 2013 through 2017, Camden-Fairview annually applied for exemptions from participating in school choice pursuant to the school choice law in effect at the time. Each year, the ADE and SBE observed these declared conflicts with school choice and included Camden-Fairview on a public list of school districts not participating in school choice. Accordingly, Camden-Fairview did not participate in school choice at all while the 2013 Act and 2015 Act were in effect.

         On December 27, 2017, Camden-Fairview applied for an exemption from participating in school choice under the 2017 Act for the 2018-2019 school year and submitted supporting documents to the ADE. On January 19, 2018, the ADE denied Camden Fairview's request for a total exemption, finding only a “partial conflict” between Camden-Fairview's desegregation obligations and participation in school choice. The ADE found that Camden-Fairview had failed to demonstrate that it was subject to a federal court's active desegregation order “explicitly limiting the interdistrict transfer of students” as to all school districts except Harmony Grove. (ECF No. 262-14, ¶ 3) (emphasis in original). Thus, the ADE concluded that Camden-Fairview is required to participate in school choice for the 2018-2019 school year “for all transfers except those to the Harmony Grove School District.” (ECF No. 262-14, ¶ 3).

         On January 30, 2018, Camden-Fairview appealed the ADE's decision to the SBE. The SBE heard Camden Fairview's appeal on March 8, 2018 and, in a subsequent order dated March 28, 2018, upheld the ADE's decision that Camden-Fairview had a partial conflict with participation in school choice, limited only to transfers from Camden-Fairview to Harmony Grove, and that Camden-Fairview must participate in school choice as to all other districts for the 2018-2019 school year. (ECF No. 262-16).

         On May 4, 2018, Camden-Fairview filed the instant Motion for Declaratory Judgment. (ECF No. 262). Camden-Fairview asserts that it is still subject to the obligations imposed by the Milton and Lancaster Orders and thus has a conflict with taking part in school choice pursuant to the 2017 Act. Camden-Fairview seeks, through various alternative means of relief, a finding that it is prohibited ...