United States District Court, W.D. Arkansas, Texarkana Division
ROSIE L. DAVIS, et al. PLAINTIFFS
WILLIAM DALE FRANKS, et al. DEFENDANTS ARKANSAS DEPARTMENT OF EDUCATION and ARKANSAS STATE BOARD OF EDUCATION INTERVENORS
O. Hickey United States District Judge
the Court is the Hope School District's
(“Hope”) Motion for Declaratory Judgment, or
Alternatively, for Clarification of Previous Orders, or
Alternatively, for Modification of Previous Orders. (ECF No.
129). Plaintiffs have filed a response in support of the
motion. (ECF No. 132). The Arkansas Department of Education
(“ADE”) and the Arkansas State Board of Education
(“SBE”) have filed a response in opposition. (ECF
No. 149). Hope has filed a reply. (ECF No. 157). The Court
finds the matter ripe for consideration.
August 5, 1988, this case was filed by African American
individuals who were employed by or attended the Hope Public
School District No. 1A in Hope, Arkansas. Plaintiffs sought
to redress alleged racial discrimination regarding Hope's
treatment of African American students and faculty. On
November 16, 1989, the Court dismissed this case with
prejudice subject to the terms of a consent decree executed
by the parties (the “Davis Decree”).
(ECF Nos. 37, 38).
dismissing this case, the Court retained jurisdiction to
reopen this action upon cause shown that the settlement had
not been completed and that further litigation is necessary.
(ECF No. 37).
January 8, 1990, the Court filed the Davis Decree on
this case's docket. The Davis Decree provides in
relevant part that:
[I]t is the intent of this Decree to remedy any past
discrimination based upon race and to prevent any like
discrimination from occurring in the future. Although this
action is brought on behalf of named black individual pupils
and staff, the parties hereby agree that this Decree shall be
equally applied to all such students and staff now and
hereafter within the Hope School District No. 1A . . .
The Court, by consent of the parties, therefore enjoins,
forbids and restrains the defendants from hereinafter
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 . . .
The Court shall have continuing jurisdiction of this Consent
Decree in order to [e]nsure compliance with the spirit and
terms of this Decree.
(ECF No. 38, ¶¶ 3, 4, 21).
Arkansas Public School Choice Act of 1989 (the “1989
Act”) was in effect at the time the parties executed
the Davis Decree. 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. 129-2, §§ 11(a-b)).
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. 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.
129-5, p. 11). Any school district that made this declaration
would be exempt from participating in school choice for that
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.
129-6, 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.
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. 129-7, 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
2013 through 2017, Hope 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 Hope on a public list of school districts not
participating in school choice. Accordingly, Hope did not
participate in school choice at all while the 2013 Act and
2015 Act were in effect.
December 27, 2017, Hope 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 Hope's
request for an exemption, finding that Hope failed to
demonstrate that it was subject to a federal court's
active desegregation order “explicitly limiting the
interdistrict transfer of students.” (ECF No.
129-13) (emphasis in original). The ADE found that the
Davis Decree, which Hope submitted, among other
things, as proof of its conflict, did not explicitly limit
inter-district student transfers and, accordingly, the ADE
concluded that Hope would be required to participate in
school choice for the 2018-2019 school year.
February 2, 2018, Hope appealed the ADE's decision to the
SBE. The SBE heard Hope's appeal on March 8, 2018 and, in
a subsequent order dated March 26, 2018, upheld the ADE's
decision that Hope would not receive an exemption and,
therefore, must participate in school choice for the
2018-2019 school year. (ECF No. 129-16).
14, 2018, Hope filed the instant Motion for Declaratory
Judgment, or Alternatively, for Clarification of Previous
Orders, or Alternatively, for Modification of Previous
Orders. (ECF No. 129). Hope states that it is still subject
to the obligations imposed by the Davis Decree and
that participation in school choice would have a segregative
impact on Hope, thereby causing it to violate the
Davis Decree. Accordingly, Hope states that it has a
conflict with taking part in school choice pursuant to the
2017 Act. Hope seeks, through various alternative means of
relief, a finding that it is prohibited from taking part in
school choice and/or a declaration that portions of the 2017
Act are unconstitutional. On May 22, 2018, Plaintiffs filed a
response supporting the instant motion. (ECF No. 132).
23, 2018, the Court issued an order certifying Hope's
constitutional challenge and sending notice to the Arkansas
Attorney General's Office pursuant to Federal Rule of
Civil Procedure 5.1(b). (ECF No. 134). On June 15, 2018, the
ADE and SBE filed a motion to intervene in this case for the
limited purpose of opposing the instant motion. (ECF No.
142). On June 22, 2018, the Court held a status conference in
which Hope, Plaintiffs, and counsel from the Arkansas
Attorney General's Office participated. On July 2, 2018,
the Court granted the ADE and SBE's motion to intervene,
thereby allowing those parties to intervene for ...