United States of America v. Arkansas Department of Educ.

St. Louis, MO - Desegregation Consent lawyer represented defendant

with seeking modification of existing desegregation consent decrees.

A 1960's court order required Junction City School District ("Junction City”)

to consolidate and integrate, but compliance with the order was halting and half-hearted and the school remained effectively segregated for years. In response to the

situation, the United States Department of Justice and Junction City entered a 1970

intradistrict consent decree requiring the reassignment of students on a non-racial and

non-discriminatory basis. The 1970 consent decree remains in effect. Under its

terms, Junction City is enjoined from maintaining segregated student assignments,

homerooms, activities, or bussing.

Hope School District No. 1A ("Hope”) entered an intradistrict consent decree

in 1990 to "remedy any past discrimination based upon race” and "prevent any like

discrimination from occurring in the future.” The consent decree enjoins Hope from

"engaging in any policies, practices, customs or usages of racial discrimination” in

any school operations. Hope must "maintain a unitary, racially nondiscriminatory

school system wherein all schools are effectively and equitably desegregated and

integrated.”

In 1993, Lewisville School District entered into an intradistrict consent decree

that now binds Lafayette County School District ("Lafayette County”). The consent

decree prohibits Lafayette County "from allowing a racially discriminatory

environment to exist within the school district” and requires the district to "maintain

a unitary, racially non-discriminatory school system wherein all schools are

effectively and equitably desegregated and integrated.” Lafayette County must also

maintain a desegregation and integration policy that "promotes pupil and staff

integration rather than . . . passive acceptance of desegregation between students of

all races.”

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Camden-Fairview School District ("Camden-Fairview”) is bound by a 1990

interdistrict consent decree entered into by the Fairview School District ("Fairview”)

and the Harmony Grove School District ("Harmony Grove”). Paragraph 1(C) of the

1990 decree requires Harmony Grove to maintain an open admission policy for nonresident black students and forbids the transfer of white students from Fairview

without Fairview's written permission. Both school districts must "refrain from

adopting student assignment plans or programs that have an interdistrict segregative

effect on either district” and "work cooperatively to create interdistrict polices and

programs to end the ravages of segregation.” In 2001, Camden-Fairview and

Harmony Grove moved the district court to grant unitary status but stated that the

provisions of paragraph 1(C) "shall remain in full force and effect to prevent future

'white flight.'” The court granted the districts unitary status in 2002 but maintained

paragraph 1(C)'s restrictions. In 2010, the court found paragraph 1(C) still

applicable.

The district court retained jurisdiction over all four cases to ensure "compliance

with the spirit and terms of” the decrees and to enforce its orders.

B. Changes in the Law

In 1989, Arkansas adopted the Arkansas School Choice Act of 1989 ("1989

Act”), which allowed children to apply to attend a nonresident school district. See

Ark. Code Ann. § 6–18–206 (repealed in 2013). The 1989 Act limited a student's

ability to "transfer to a nonresident district where the percentage of enrollment for the

student's race exceeds that percentage in his resident district.” Id. The law remained

in effect until 2013, when it was expressly repealed by the Arkansas Public School

Choice Act of 2013 ("2013 Act”). Ark. Code. Ann. § 6–18–1906 (2013). The 2013

Act allowed for students to transfer to nonresident school districts but did not bar

segregative transfers. Instead, the 2013 Act allowed school districts to declare

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themselves exempt if participating in school choice would conflict with an existing

federal-court desegregation plan or order.

Two years later, Arkansas enacted the Public School Choice Act of 2015

("2015 Act”), which eliminated a school district's ability to declare itself exempt

from participating in school choice. Ark. Code. Ann. § 6–18–1906 (2015). Under

the 2015 Act, a district seeking an exemption was required to submit proof of an

active desegregation order or plan to the Arkansas Department of Education ("the

Department”). If a district submitted proof, the terms of the order or plan would

govern. In 2017, Arkansas amended the 2015 Act ("2017 Amendments”) to require

districts seeking exemptions to submit proof of a desegregation plan or order "that

explicitly limits the transfer of students between school districts.” Ark. Code. Ann.

§ 6–18–1906 (2017).

C. Current Litigation

Junction City, Hope, and Camden-Fairview applied for exemptions from school

choice each year from 2013 to 2017. Lafayette County took part in school choice for

the 2013-2014 school year but, after losing thirty non-black students to interdistrict

transfers, applied for an exemption due to segregative impact. All of the Districts

received exemptions from 2014 to 2017. The Districts applied for exemptions for the

2018-2019 school year but were denied. As a result, they were required to participate

in school choice. The Districts filed motions for declaratory judgment, clarification

of previous orders, or modification of previous orders. They argued that participating

in school choice would have a segregative impact and cause them to violate existing

desegregation orders.

After a hearing, the district court granted the Districts' motions to modify the

consent decrees to prohibit segregative, interdistrict transfers. While CamdenFairview had been declared unitary, the court determined that the remaining

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desegregation obligations of paragraph 1(C) allowed modification. The court found

that the repeal of the 1989 Act and the enactment of the 2017 Amendments were a

significant change in law. Based on their language and the context surrounding the

decrees' adoption, the court determined that the decrees were intended to prohibit any

racial discrimination within the Districts. The court modified the consent decrees to

"explicitly prohibit the segregative inter-district transfer of students from [the

Districts] to other school districts, unless such a transfer is requested for education

or compassionate purposes and is approved by [the Districts'] school board[s] on a

case-by-case basis.” The Department appeals the district court's modification orders.

II. Discussion

We review the district court's decision to modify a consent decree for abuse of

discretion. Davis v. Hot Springs Sch. Dist., 833 F.3d 959, 963 (8th Cir. 2016). We

will find an abuse of discretion only where a court's decision was based on erroneous

legal conclusions or clearly erroneous factual findings. Parton v. White, 203 F.3d

552, 556 (8th Cir. 2000). Where possible, courts should interpret the parties' intent

from the consent decree's unambiguous terms. Pure Country, Inc. v. Sigma Chi

Fraternity, 312 F.3d 952, 958 (8th Cir. 2002). However, the circumstances and

context surrounding the order cannot be ignored. United States v. Knote, 29 F.3d

1297, 1300 (8th Cir. 1994); see also Mays v. Bd. of Educ. of Hamburg Sch. Dist., 834

F.3d 910, 918 (8th Cir. 2016). "This is because a consent decree is a peculiar sort of

legal instrument that cannot be read in a vacuum. It is a kind of private law, agreed

to by the parties and given shape over time through interpretation by the court that

entered it.” Knote, 29 F.3d at 1300 (cleaned up). We give a large measure of

deference to the interpretation of the district court that entered the consent decree.

Id.

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A. Substantive Change in Law

The Department alleges that the district court erred in modifying the underlying

consent decrees. The Department argues that, because the original decrees do not

discuss interdistrict transfers, the repeal of the 1989 Act and enactment of the 2017

Amendments are not a substantial change in circumstances supporting modification.

Consent decrees may be modified under Federal Rule of Civil Procedure 60(b).

Smith v. Bd. of Educ. of Palestine-Wheatley Sch. Dist., 769 F.3d 566, 570 (8th Cir.

2014). Modifying a consent decree may be necessary where the laws or facts at issue

at the time of issuance have changed or new ones have arisen. Pasadena City Bd. of

Educ. v. Spangler, 427 U.S. 424, 437 (1976); Davis, 833 F.3d at 963–64.

"Modification may be appropriate when changed factual conditions make compliance

with the decree substantially more onerous, a decree proves to be unworkable because

of unforeseen obstacles, or enforcement of the decree without modification would be

detrimental to the public interest.” Parton, 203 F.3d at 555.

The party seeking modification must establish a significant change in

circumstances warranting revision of the decree. Smith, 769 F.3d at 570–71. If the

moving party shows a significant change in circumstances, the court then considers

if the proposed modification "is suitably tailored to the changed circumstances.” Id.

at 571. Modification should not be granted where a party relies on events that were

anticipated when the decree was entered. Mays, 834 F.3d at 919. The movant must

show that the change in law actually affects the section of the consent decree at issue.

Davis, 833 F.3d at 964.

The district court found that the repeal of the 1989 Act and the subsequent

enactment of the 2017 Amendments were a significant change in law that allowed for

modification of the consent decrees. The court examined the underlying orders and

determined that the consent decrees "clearly intended to prohibit any racial

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discrimination occurring within” the Districts, "including preventing student transfers

which result in segregation of [the Districts'] student body.” The court specifically

found that the original consent decrees did not explicitly bar interdistrict transfers

because the 1989 Act already prohibited transfers where there was a segregative

impact or, in the case of Junction City, such transfers were not allowed in Arkansas

when the decrees were entered. The court determined that the 2017 Amendments'

requirement that a court order explicitly bar interdistrict transfers presented an

unforeseen obstacle making the consent decrees unworkable.

We agree that the laws influencing the consent decrees have clearly changed

since the Districts entered into the agreements. Had Arkansas law not prohibited

interdistrict transfers when the decrees were enacted, it is likely that the Department

of Justice would have required that language similar to the district court's

modification be included in the agreements. A plain reading of the consent decrees

shows that they were intended to prohibit all forms of racial segregation. It was

reasonable for the authors of the decrees to rely on existing laws to frame the

agreements and not include provisions for actions already prohibited by those laws.

See Knote 29 F.3d at 1300 (stating that we cannot ignore the context in which a

consent agreement was entered).

In crafting its modification order the district court also took notice of

segregative issues stemming from the State's inaction in the face of white flight. The

court heard evidence about the interdistrict transfers' effect on the Districts, including

Lafayette County's loss of thirty non-black students in the only year it did not receive

an exemption from participating in school choice. In Edgerson on Behalf of

Edgerson v. Clinton, we stated that district courts are "uniquely situated to appraise

the societal forces at work in the communities where they sit.” 86 F.3d 833, 838 (8th

Cir. 1996) (cleaned up). These appraisals include determining whether transfer

policies caused white flight. See id. While the court in Edgerson did not find that

the transfer policies had caused white flight, id. at 837, segregative interdistrict

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transfers in this case had already negatively affected the Districts. It was not

improper for the district court to consider these facts in its determination.

The dissent seeks to minimize the evidence of white flight that was before the

district court. Aside from one district (Junction City), which had only private school

students requesting interdistrict transfers, the Department put forth limited evidence

regarding private school students requesting transfers. In particular, the Department

pointed only to two other private school families making such requests, both located

in Camden-Fairview. The Department did not present evidence regarding the number

of transfer requests by private school students in either Hope or Lafayette County.

The evidence in the record is contrary to the dissent's assertions that there are

"no facts” to support a finding of a white flight problem in Junction City and that

interdistrict transfers would have little to no impact on Camden-Fairview's and

Hope's racial demographics. Multiple superintendents with decades of experience

in southern Arkansas schools testified that white flight would be a problem in

Junction City. As to the other Districts, all fifteen students requesting interdistrict

transfers in Camden-Fairview were from non-black students. The former

superintendent of Camden-Fairview (the superintendent when the district was

declared unitary) testified that the 1989 Act's interdistrict transfer prohibition was

"critical” to the district achieving unitary status.

Of the 70 interdistrict transfer requests from students in Hope, 68 of them were

from non-black students. Hope's superintendent testified that the percentage of nonblack students making interdistrict transfer requests did not surprise him because he

had discussions with white parents as to the reasoning why the parents wanted to

move their children to a different school district. The reasons included, in part,

because there was nobody in the child's grade to date; there was nobody to invite for

sleepovers; and a disagreement with the morals of the student body. The dissent

incorrectly focuses on the fact that only 23 students actually transferred from Hope.

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The lower transfer rate was because the other students' requests were denied by the

receiving school districts. But for the actions of other school districts denying

applications, Hope could have lost 3% of its non-black student body, the maximum

allowed under Arkansas law, in its very first year of school choice participation.

Both school years Lafayette County participated in school choice, Lafayette

County lost the maximum 3% of its non-black student body allowed under the law,

or very close to it. During the 2013-2014 school year, it lost over 30 of its students

to interdistrict transfers. Each one of the transferring students was white. During the

2018-2019 school year, after its application for an exemption from school choice was

denied, 35 students requested interdistrict transfers. Once again, each one of the

transferring students was white. All but one of the students was accepted by other

school districts.

The district court did not abuse its discretion in considering and crediting

evidence of white flight when it determined that a substantial change in circumstances

had occurred warranting modification of the consent decrees.

B. Interdistrict Remedy

The Department asserts that, even if the repeal of the 1989 Act and enactment

of the 2017 Amendments qualify as a substantial change in the law, the district

court's modification is still an impermissible interdistrict remedy. The Department

essentially argues that because the modification prohibits the Districts from allowing

their students to make segregative transfers, the court's modification binds other

school districts. We reject this argument.

A court cannot order an interdistrict remedy without showing an interdistrict

violation. Edgerson, 86 F.3d at 837 (citing Milliken v. Bradley, 418 U.S. 717, 745

(1974) (Milliken I)). A violation is interdistrict if it "caused segregation between

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adjoining districts.” Missouri v. Jenkins, 515 U.S. 70, 94 (1995). Interdistrict

remedies occur when a district court restructures or coerces local governments or

their subdivisions. Liddell v. Missouri, 731 F.2d 1294, 1308 (8th Cir. 1984) (citing

Hills v. Gautreaux, 425 U.S. 284, 298 (1974)).

We have not found an interdistrict remedy where the district court's action does

not threaten autonomy of a separate governmental body. In Liddell, the court

required the State to pay the cost for voluntary interdistrict transfers. Id. We stated

that requiring the State to bear the transfer costs "does not threaten the autonomy of

local school districts; no district will be coerced or reorganized and all districts retain

the rights and powers accorded them by state and federal laws.” Id. Here, the district

court's remedy does not threaten the autonomy of any school district. The

modification's only potential effect on other school districts is a possible decrease in

transfer requests from the Districts' students. Transfers out of the Districts may still

occur, no matter the race of the student, as long as there is an educational or

compassionate purpose and the request is approved by the student's school board.

Limitations are placed only on the ability of a student to leave one of the Districts.

These requirements do not limit or set boundaries on other school districts' rights or

powers to accept transfer students into their districts once the students have been

approved to transfer out of their original school. By restricting the conditions under

which students can transfer out of the Districts the district court has placed limitations

on only the Districts, not on any other school district in the state of Arkansas. The

district court has not restructured or coerced local governments, so the modification

of the consent decrees does not impose an impermissible interdistrict remedy.

Based on our review of the record, and the large degree of deference we must

give to the district court that entered the consent decree, we cannot find that the

district court abused its discretion in modifying the consent decrees.

For the reasons stated herein, we affirm.