United States District Court, W.D. Arkansas, El Dorado Division
LARRY MILTON, et al. PLAINTIFFS
v.
MIKE HUCKABEE, et al. DEFENDANTS
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 ...