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Arkansas Democrat-Gazette

U.S. District Judge Susan O. Hickey has denied a state request to set aside her recent court orders that bar interdistrict student transfers in and out of four school districts until the legality of the transfers is decided by a federal appeals court.

Hickey ruled in January in favor of the four school districts — Camden Fairview, Hope, Lafayette County, and Junction City — that had asked to be exempted from participating in the interdistrict student transfers because of their decades-old federal school desegregation lawsuits.

Regarding this most recent development, Camden Fairview School District Superintendent Mark Keith told the Camden News:

“We’re pleased with it. That’s what we wanted. We’ll take it to the 8th circuit court if we need to. It’s going just like we were hoping it would. We’re doing what we think is best for our district. We’ve got a good school here, we like to keep our kids and let our community take advantage of a good school. If there’s a problem y’know we’re going to fix it. We have a good school.”

The Arkansas attorney general’s office asked earlier this month that Hickey approve a stay, or delay, on prohibiting student transfers pending the outcome of the state’s challenge to that bar in the 8th U.S. Circuit Court of Appeals in St. Louis.

A spokesman for Attorney General Leslie Rutledge’s office said on Monday that state attorneys will now ask the appeals court to order the stay in carrying out Hickey’s bar on the interdistrict transfers.

An appeals court stay could have the effect of allowing student interdistrict transfers for the coming 2019-20 school year.

“In February, the Attorney General filed an appeal with the Eighth Circuit following the trial court’s decision to limit parents’ right to choose the best educational opportunities for their children,” spokesman Amanda Priest said in an email. “The Attorney General will be seeking a stay from the Eighth Circuit.”

Whitney Moore, an attorney for the four school districts, said Monday that she was pleased that Hickey had “denied the State’s request to stay the orders modifying the districts’ desegregation orders and decrees.”

“The modification orders confirm that participation in school choice by these districts conflicts with the districts’ desegregation obligations,” Moore said. “Staying those orders during the appeal process is not warranted and would harm the districts’ efforts to comply with their obligations and provide their students with a desegregated education.”

The state’s School Choice Act, which dates to 1989 but has since undergone multiple legislative revisions, allows students to attend schools in districts other than the ones in which they reside — unless the receiving district has inadequate space for the transfer student or if a district submits proof to the Arkansas Department of Education that transfers conflict with an active desegregation order or desegregation plan that explicitly bars interdistrict student transfers.

In each of her four similar orders in January, Hickey approved modifying the terms of the four districts’ long-standing desegregation orders and/or decrees to specifically include that bar.

In rejecting the state’s request that she stay her orders pending the outcome of the appeal, Hickey said the state Education Department and the state Board of Education did not meet necessary legal requirements.

To obtain a stay, the state attorneys working on behalf of Education Department and board had to show a likelihood of success in winning the appeal based on the merits of the case, the judge said.

The state also had to show that it would be irreparably harmed without the stay. Other conditions to be considered included whether a stay would substantially injure the non-moving party — the school districts and plaintiffs in the desegregation cases — and the public interest.

“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,” Hickey wrote, citing a 2011 8th Circuit court case Brady v. the National Football League. That case stemmed from a possible lockout of professional football players in a contract dispute.

In the order regarding the Hope School District, the judge said in part that the state is unlikely to succeed on appeal with arguments that the court previously considered and rejected.

“The ADE and SBE have presented no additional argument or on-point caselaw to cause the Court to reverse course from its prior ruling,” she wrote. “Thus, the Court finds that they are unlikely to succeed on appeal with these arguments.”

Hickey also disagreed with the state’s argument that the Education Department and board would suffer irreparable harm with a stay. She said her January orders modified the existing desegregation decree in the Hope case and other districts to satisfy the requirements of the 2017 School Choice Act.

“[T]he modification order took no action as to the 2017 Act, which is still in force and applicable to a vast majority of Arkansas public school districts,” she wrote. “The modification order has had no impact on the State of Arkansas’ ability to enforce its duly enacted school choice law, and Arkansas is indeed free to continue doing so.”

The judge discounted the state’s arguments that parents who would exercise interdistrict transfers for their children will suffer irreparable harm if there is no stay. She noted that the parents and children are not parties in the case but, if they were, the harm to them from a denial of a stay is “speculative. “

“The reasons offered by parents for desiring a transfer are in fact speculative, as they are based either solely on the belief that a student will suffer from poorer grades or unsafe conditions unless allowed to transfer to another school district, or on the notion that a student’s sibling experienced better conditions at another school and, thus, the student desiring to transfer likely would as well,” she wrote.

“However, there is nothing to indicate that any particular student’s circumstances would indeed change if allowed to transfer to another school district or that the student or parent would suffer irreparable harm otherwise,” she said.

The judge also noted that her orders do not deprive parents of the ability to move to another district, or seek a transfer based on education or compassionate purposes, or place their child in a private or home school.

On the other hand, Hickey concluded that a stay would cause substantial harm to Hope and the other affected districts because they would be forced to participate in school choice law and would violate the terms of their federal court desegregation decrees.

On the matter of the public’s interest in seeing that laws are carried out, Hickey concluded that the enforcement of “duly enacted laws is secondary to the public’s interest in protecting students’ constitutional right to attend desegregated public schools.”

In each of her four similar orders in January, Hickey approved modifying the terms of the four districts’ long-standing desegregation orders and/ or decrees to specifically include that bar.

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