Milton v. Huckabee

          ORDER

          Susan O. Hickey, Chief United States District Judge

         Before the Court is the Motion for Stay Pending Appeal and to Expedite (ECF No. 310) filed by Intervenors Arkansas Department of Education and Arkansas State Board of Education. (“ADE and SBE”). Defendant Camden-Fairview School District (“Camden-Fairview”) has responded. (ECF No. 314). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On January 17, 2019, the Court entered an order (the “modification order”) modifying a consent order that was executed by the parties to this case and later modified by court order in a separate, parallel case (the “Milton and Lancaster Orders”) to explicitly prohibit the segregative interdistrict transfer of students from Camden-Fairview to other school districts, unless such a transfer is requested for education or compassionate purposes and is approved by Camden-Fairview's school board on a case-by-case basis.^[1] (ECF No. 307). On February 15, 2019, the ADE and SBE filed a notice of appeal as to the modification order. That same day, the ADE and SBE filed the instant motion, asking the Court to issue a stay of the modification order pending the outcome of the appeal and asking the Court to shorten the other parties' time to respond to the instant motion. On February 20, 2019, the Court denied the ADE and SBE's request to shorten the other parties' response time. (ECF No. 312). On March 1, 2019, Camden-Fairview filed a response opposing the instant motion. (ECF No. 314). On March 4, 2019, Plaintiffs moved to adopt Camden-Fairview's response by reference, and the Court granted Plaintiffs' motion on March 5, 2019. (ECF Nos. 316, 317).

         For the reasons discussed below, the Court finds that the ADE and SBE have not met their burden to receive a temporary administrative stay of the modification order or a full stay pending the appeal of the modification order.

         II. DISCUSSION

         In deciding whether to grant a motion to stay an order pending appeal, the Court considers the following four factors: (1) the likelihood of the movant's success on the merits of the appeal; (2) whether the movant will be irreparably harmed absent a stay; (3) whether issuance of the stay would substantially injure the non-moving party; and (4) where the public interest lies.^[2] Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Courts must consider the relative strength of the four factors, balancing them all, with the most important factor being the likelihood of success on appeal. Brady v. Nat'l Football League, 640 F.3d 785, 789 (8th Cir. 2011). As the moving parties, the ADE and SBE bear the burden of proving that the weight of the four factors warrant a stay. See James River Flood Control Ass'n v. Watt, 680 F.2d 543, 544 (8th Cir. 1982) (per curiam). With this standard in mind, the Court will now address each of the four factors as they relate to the instant motion for a stay pending appeal.

         A. Likelihood of Success on the Merits

         The first factor asks whether the moving party is likely to succeed on appeal. Hilton, 481 U.S. at 776. The moving party need not establish an absolute certainty of success. Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 423 (8th Cir. 1996).

         The modification order found that modification of the Milton and Lancaster Orders was proper because a significant change in law warranted revision of the consent order and because the proposed modification was suitably tailored to the changed circumstance. In the present motion, the ADE and SBE advance three arguments as to why the Court's ruling is likely to be reversed on appeal: (1) that no significant change in law occurred to warrant modification and that the Court misinterpreted the Milton and Lancaster Orders, (2) that the modification was not suitably tailored because it imposed an impermissible interdistrict remedy, and (3) the modification order unlawfully violates students' equal protection rights. The Court will separately address each of these arguments.

         1. Significant Change in Facts or Law

         The ADE and SBE's first argument is that the enactment of Act 1066 of the Regular Session of 2017 (the “2017 Act”) was not a significant change in law justifying modification because the Milton and Lancaster Orders did not explicitly concern the interdistrict transfer of students from Camden-Fairview to elsewhere. Specifically, the ADE and SBE argue that the 2017 Act was not a significant change in law because Camden-Fairview did not show that the law had an actual effect on the Milton and Lancaster Orders, thereby making them unworkable. This argument is repetitive of an argument that the ADE and SBE previously made in the underlying briefing that gave way to the Court's modification order, and that the Court expressly considered and rejected. Without restating the entire modification order, the Court found^[3] that the “changes in the governing school-choice statutory framework-and the ensuing requirements and limitations-have an actual effect on Camden-Fairview's ability to comply with the Milton and Lancaster Orders.” (ECF No. 307, p. 13). The Court reasoned that the 2017 Act requires that, for Camden-Fairview to receive an exemption from school choice, the Milton and Lancaster Orders must contain specific restrictive language that was contemplated by and built into the Arkansas Public School Choice Act of 1989 (the “1989 Act”), which was in effect at the time the consent order was executed. Thus, the 2017 Act prevents Camden-Fairview from claiming an exemption from participating in school choice, thereby presenting a change in law that justified modification of the consent order.

         The ADE and SBE also argue that the Court misinterpreted the Milton and Lancaster Orders. They argue that this case and the Milton and Lancaster Orders have nothing to do with the interdistrict transfer of students other than between Camden-Fairview and the Harmony Grove School District (“Harmony Grove”), and the parties to the Milton and Lancaster Orders did not believe that the consent order encompassed that subject. Thus, they argue that the Court erred by looking beyond the four corners of the Milton and Lancaster Orders and finding that the parties to the consent order intended to prohibit all interdistrict student transfers which result in the segregation of Camden-Fairview's student body.

         The Court's modification order considered and rejected this argument, finding no evidence that the parties to the Milton and Lancaster Orders had anticipated “that the 1989 Act would be repealed and replaced with a school choice law that requires that the Milton and Lancaster Orders contain specific restrictive language that was specifically built into the 1989 Act.” (ECF No. 307, p. 13). In reaching this conclusion, the Court was mindful of the Eighth Circuit's instruction that courts interpreting a consent decree “are not to ignore the context in which the parties were operating, nor the circumstances surrounding the order.” United States v. Knote, 29 F.3d 1297, 1300 (8th Cir. 1994). Although the Court noted that the Milton and Lancaster Orders did not explicitly prohibit the interdistrict transfer of students other than between Camden-Fairview and Harmony Grove, the Court also considered the context in which the parties were operating and the circumstances surrounding the order, thereby finding that it was unnecessary for the parties to draft the Milton and Lancaster Orders in a way that explicitly barred all segregative interdistrict student transfers because that limitation was contemplated by the school choice law in place at the time. (ECF No. 307, p. 12). Thus, the Court did not misconstrue the consent order, but rather interpreted it by properly considering the context in which the parties negotiated and executed the Milton and Lancaster Orders and the circumstances surrounding the same.

         For the above reasons and for the reasons stated in the modification order, the Court finds that the ADE and SBE are unlikely to succeed on appeal with arguments that the Court previously considered and rejected. Cf. St. Jude Med., Inc. v. Access Closure, Inc., No. 4:08-cv-4101-HFB, 2012 WL 12919351, at *1 (W.D. Ark. Oct. 2, 2012) (“[I]f the Court thought [the movant's] position was likely to succeed on appeal, the Court would not have decided against [the movant] in the first place.”). The ADE and SBE have presented no additional argument or on-point caselaw to cause the Court to reverse course from its prior ruling. Thus, the Court finds that they are unlikely to succeed on appeal with these arguments.

         2. Interdistrict Remedy

         The ADE and SBE further argue that the modification order imposes an impermissible “interdistrict remedy, ” and is, therefore, not suitably tailored to the changed circumstances outlined by the Court. The ADE and SBE assert that the claimed interdistrict remedy is inappropriate as to any districts other than Camden-Fairview and Harmony Grove because the Milton and Lancaster Orders only dealt with alleged interdistrict violations between those two districts. This line of argument was addressed and found unpersuasive in the modification order. (ECF No. 307, pp. 14-15). Specifically, the Court observed that the modification would not directly restrict any other school district's actions. That being said, the Court noted that the modification would have an indirect impact on other school districts in that they would be unable to receive Camden-Fairview students via school choice transfers because Camden-Fairview would be barred from granting segregative interdistrict transfers. However, the Court stated that the ADE and SBE had cited no binding authority finding that a remedy like the modification constituted an interdistrict remedy and that the Court was unaware of any such authority.^[4] The Court further noted instances in which courts had found that the remedy implemented was interdistrict, such as forced consolidation of school districts, imposition of an interdistrict magnet school plan, and creation of an interdistrict student bussing plan.^[5] (ECF No. 307, p. 16).

         The ADE and SBE now attempt to re-litigate this issue. To the extent that the ADE and SBE present the same or substantially similar arguments as previously addressed by the modification order, the Court again finds those arguments unpersuasive. The ADE and SBE, however, do present one new, though similar, argument that was not raised in the briefing of the underlying motion. Specifically, the ADE and SBE assert that the granted modification is impermissible because it had an “interdistrict purpose, ” arguing that a remedy that has ...