Turner et al v. Key et al
Filing
34
ORDER granting 25 Motion to Dismiss, with a carve-out for any future claims about the 2017 amendments. Signed by Judge D. P. Marshall Jr. on 9/28/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
CURTIS TURNER, individually and as
Superintendent of the Mineral Springs
School District; MINERAL SPRINGS SCHOOL
DISTRICT BOARD OF EDUCATION, a public
body corporate; WILLIAM DIXON, MIKE
ERWIN, JAMIE JACKSON, ZEMERA NEWTON,
RAY HAWKINS, SHEILA JACKSON, and
DOROTHY VAUGHN, all individually and
in their official capacities as members of the
Mineral Springs School District Board of
Education; and MINERAL SPRINGS
SCHOOL DISTRICT
v.
PLAINTIFFS
No. 2:16-cv-29-DPM
JOHNNY KEY, individually and as
Commissioner of the Arkansas Department
of Education; ARKANSAS DEPARTMENT
OF EDUCATION, a state agency; BOARD OF
EDUCATION OF THE ARKANSAS
DEPARTMENT OF EDUCATION; JAY BARTH,
JOE BLACK, CHARISSE DEAN, MIREYA
REITH, R. BRETT WILLIAMSON, DIANE
ZOOK, SUSAN CHAMBERS, OUIDA
NEWTON,* and 0. FITZGERALD HILL,* all
individually and in their official capacities;
and HEMPSTEAD COUNTY, Arkansas
DEFENDANTS
* The State Board has two n ew members, Ouida Newton and 0. Fitzgerald Hill.
They're substituted for Toyce Newton and Vickie Saviers, whose terms expired
in June 2016. FED. R. CIV. P. 25(d).
ORDER
1. The Mineral Springs School District, its board members, and its
superintendent
contend
that
Arkansas-in
the
persons
of
commissioner of education Johnny Key and the state board of
education- have violated the Fourteenth Amendment.
The State
Defendants' long-pending motion to dismiss needs deciding. In their
briefing, the parties have commendably boiled Mineral Springs' s third
amended complaint down. There are two live disputes:
• Did the State Defendants encourage (through various
particular steps) inter-district segregation in Howard and
Hempstead Counties in violation of the Equal Protection
Clause?
• Do the transfer limitations in the 2013 and 2015 versions
of Arkansas's School Choice Act violate the Equal
Protection Clause?
Mineral Springs says it has pleaded plausible claims that both
constitutional violations occurred. The State Defendants say that the
District has not. As Mineral Springs acknowledges, for one legal reason
or another, its other claims fail at the threshold. They'll all be dismissed
by agreement.
The Court reviews the two remaining claims for
plausibility: accepting the facts alleged as true, giving Mineral Springs
the benefit of reasonable inferences from those facts, while disregarding
conclusions (legal and factual), is it plausible that race partly motivated
the State Defendants' actions? Ashcroft v . Iqbal, 556 U.S. 662, 678 (2009).
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2. The Court takes the second issue first. It does so because the
2013 and 2015 statutory changes to the School Choice Act are among
the things that Mineral Springs says show an "evasive scheme" to
promote racially segregated school districts in Howard and Hempstead
Counties. NQ 23 at 32. Mineral Springs highlights Ark. Code Ann. § 618-1906, which limits student transfers between districts. The 2013
version of this section is in Appendix A;
the 2015 version is in
Appendix B.
After the parties fully briefed this case, the 91st General Assembly
further amended this statute during the 2017 regular session. 2017 Ark.
Acts 1066, § 4. There has been no request to amend the complaint again,
file supplemental briefs, or otherwise bring the 2017 amendments into
this case. So the Court doesn't have the benefit of adversarial argument
on the latest changes. The most prudent course, in these circumstances,
is to limit this decision to what has been argued. The Court's ruling is
therefore without prejudice to any later claim involving the 2017
amendments to Ark. Code Ann. § 6-18-1906.
The Teague litigation is the backdrop to this evolving statute.
Before that case was filed, the General Assembly considered replacing
the race-based limitations on transfers with numerical limitations; and
after the Western District of Arkansas held that those race-based
limitations were unconstitutional, and tainted the statute beyond
repair, the General Assembly repealed and replaced the whole School
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Choice Act. Teague v. Cooper, 720 F.3d 973, 975-76 (8th Cir. 2013). That
development mooted the case. As the Court of Appeals anticipated, the
statute has continued to change and come back into court. 720 F.3d at
977-78.
Mineral Springs has failed to make a plausible claim that the 2013
and 2015 versions of School Choice Act offend the Equal Protection
Clause. The statute's words are neutral about race. The law has reasons
behind it:
promoting student transfers between districts, while
respecting desegregation obligations about student assignment. Ark.
Code Ann. § 6-18-1901(b).
The statute limits total transfers by a
percentage of district enrollment, rather than by racial criteria, which
the now-repealed statute deployed. Compare Ark. Code Ann. § 6-181906(b), with Ark. Code Ann. § 6-18-206(f)(l)(repealed 2013). As the
Court of Appeals noted in dictum on the way to holding that the
Teagues' case was moot, "[b ]y rewriting the entire statute and
eliminating all explicitly race-based limits on school transfers, the
General Assembly evidenced an intent to move away from this
constitutionally sensitive issue so as to preserve the benefits of school
choice." 720 F.3d at 978.
Mineral Springs acknowledges all this. The District presses its
attack on the statute nonetheless, contending that, though rational, the
law is defective because one of its purposes was to facilitate resegregation, which would not be protecting all the students equally,
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contrary to the Constitution's command. Stevenson v. Blytheville School
District #5, 800 F.3d 955, 972 (8th Cir. 2015); Friends of Lake View School
District Incorporation No. 25 of Phillips County v. Beebe, 578 F.3d 753, 761
(8th Cir. 2009). This is implausible. Of course the General Assembly
was responding to the District Court's invalidation of the former statute
in Teague.
But it's a leap from there to a discriminatory purpose.
Mineral Springs' s deeper point is that a choice regime that doesn't take
race into account makes re-segregative effects likely, a result Arkansas
had pointedly acknowledged in defending the former statute during
the Teague case. This argument, though, runs into settled law: a likely
disparate impact doesn't show discriminatory purpose - unless benign
purposes don't exist, seem hoked-up, or are mixed with facts showing
a bad purpose.
Village of Arlington Heights v. Metropolitan Housing
Development Corporation, 429 U.S. 252, 264-66 (1977). Mineral Springs
says that the General Assembly didn't have to pass any new choice
statute, which is a true and revealing point. Arkansas has for some
years been pursuing pro-school-choice policies. Commissioner Key has
been a leader in this push, as Mineral Springs notes. This legitimate,
albeit contested, purpose undoubtedly exists. The 2013 Act reflects that
purpose.
What about the 2015 Act? See Appendix B. As Mineral Springs
points out, among other things, these amendments addressed the
desegregation limits on transfers. An annual-exemption procedure,
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which had been available to districts, was cut. And districts claiming a
conflict between the statute's generally applicable inter-district choice
provisions and a desegregation plan or order about student assignment
were required to submit proof from a federal court of genuine conflict
with an active order or plan.
Ark. Code Ann. § 6-18-1906(a).
In
addition, districts were required to send the Department of Education
copies of all desegregation orders.
requirements.
Ibid.
These are marginal
The conflict provisions had generated disputes,
including some litigation. E.g., Stevenson, supra; Forrest City Special
School District v. Palestine-Wheatley School District, No. 2:14-cv-117-BRW.
Though Mineral Springs describes the 2015 changes as narrowing ones,
the foundational law remained:
a desegregation obligation about
student assignments trumped a transfer request that the statute would
otherwise allow. Ark. Code Ann.§ 6-18-1906(a)(1). The 2015 changes
provided clarity; they do not plausibly show discriminatory animus.
In sum, Mineral Springs' s stand-alone challenge to the 2013 and
2015 versions of the School Choice Act's transfer limitations fails to
state a claim.
3. In its other remaining claim, Mineral Springs says that the State
Defendants intended to disfavor black students in Howard and
Hempstead Counties. That purpose, of course, would offend the Equal
Protection Clause.
Mineral Springs sees this intention in several
particulars: the 2013 and 2015 changes to the School Choice Act; recent
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statutory and regulatory changes to the rules about school district
performance; the consolidation of the Mineral Springs and Saratoga
school districts; and the lack of comprehensive data gathering and
reporting- about the effects of both student transfers and district
consolidation on the racial composition of school districts. Again the
Court confronts state actions that are racially neutral on the surface, and
to go forward in this case Mineral Springs must have other facts from
which a racially biased intent may reasonably be inferred. Village of
Arlington Heights, 429 U.S. at 264-66.
The District does not allege enough of this kind of facts. Its main
point is that-post-consolidation and post-transfers - the current
districts in these two counties have gotten blacker and whiter. This is
a fact, a result, but not one that carries the day on discriminatory intent.
Of course the results of official action are relevant in evaluating
intentions. Village of Arlington Heights, 429 U.S. at 265-66. But this is
not the
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exceedingly rare case[]" where the effects of neutral state
action alone make the claim a solid one. Friends of Lake View, 578 F.3d
at 762 n.12.
A closer look at the particulars alleged leads the Court to the same
place. The 2013 and 2015 post-Teague changes to the School Choice Act
have already been considered at some length. Mineral Springs, with
admirable candor, indicates it would prefer either no path for interdistrict transfers, or at least one hedged with race-based limits to
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prevent re-segregation. Understood. Recent precedent, though, makes
plain that the latter option would raise constitutional questions. E.g.,
Parents Involved in Community Schools v. Seattle School District No. 1, 551
U.S. 701 (2007). The district court's vacated decision in Teague, although
not as a matter of precedent for this case, illustrates this reality. Teague
ex rel. T. T. v. Arkansas Board of Education, 873 F. Supp. 2d 1055 (W.D.
Ark. 2012), vacated sub nom., Teague v. Cooper, 720 F.3d 973 (8th Cir.
2013).
In Doe v. Arkansas Department of Education, No. 4:15-cv-623-DPM,
this Court addressed in detail the evolving Arkansas law about
academic districts, including when the State may step in, all in the
context of the Little Rock School District takeover. NQ 72 at 20-24. In
general, the State now expects better student performance and can
assert control of troubled districts sooner. This is another instance of
the core of Mineral Springs' s case:
facially neutral law that
disproportionately affects minority districts. But that core truth isn't
enough to make it plausible that the State Defendants enacted, and are
implementing, these rules motivated partly by an intention to harm
black students in general or those in Howard or Hempstead Counties
in particular. The law presumes good intentions, leavened, of course,
with reasonable disputes about the wisdom of the resulting actions.
Mineral Springs has clarified that it has no quarrel with the
racially neutral push for fewer school districts reflected in the Public
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Education Reorganization Act. Ark. Code Ann.§§ 6-13-1601, et seq. The
allegation, instead, is that the State Defendants "ignor[ed] the racial
safeguard of [this] Act by allowing [the Saratoga and Mineral Springs
districts] to consolidate."
NQ 29 at 14.
This Act says:
"All
administrative consolidations or annexations under this section shall be
accomplished so as not to create a school district that hampers, delays,
or in any manner negatively affects the desegregation of another school
district in this state." Ark. Code Ann.§ 6-13-1603(c).
This provision seems to be about safeguarding desegregation
orders and plans, which aren't alleged to have been in play in Howard
County or Hempstead County. All the districts in those counties are,
insofar as the record discloses, unitary. Putting that point to one side,
the consolidation issue comes down to untoward effects from a
comprehensive and neutral statutory scheme, in which Arkansas
pursued economies of scale to improve schools, and which was upheld
against constitutional attack. Friends of Lake View, 578 F.3d at 761-63.
Mineral Springs' s variation on this theme -violation of a statutory duty
to avoid adversely affecting desegregation efforts-is creative. And
under Arlington Heights, deviations from legal obligations can indicate
discriminatory intentions. 429 U.S. at 266- 67. But, Mineral Springs' s
point here is ultimately one of law, not fact, and the Court is
unpersuaded that the point survives the Friends of Lake View holding.
578 F.3d at 761-63.
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Last, data collection and reporting.
Mineral Springs' s third
amended complaint, attachments, and briefing are full of numbers.
They're how Mineral Springs has shown with clarity that all the
districts in Howard County and Hempstead County are re-segregating.
So the data are there. What Mineral Springs alleges, and what the Court
assumes to be true, is that the Department of Education hasn't fulfilled
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its statutory duties to analyze whether transfers are having a racially
segregative impact" on particular districts and to report its findings
annually to the General Assembly's education committees. Ark Code
Ann.§ 6-18-1907(c)(repealed 2017). This is troubling. While it may be,
as the State Defendants say, that these duties are ministerial, with no
immediate impact on these districts, the statute wasn't followed. These
omissions support a reasonable inference that the State hasn't been as
concerned about these issues as Arkansas law required.
But these
omissions do not salvage the claim. The pro-school-choice agenda is
on the march in Arkansas.
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As between that obvious alternative
explanation for the [State Defendants' omissions] and the purposeful,
invidious discrimination [Mineral Springs asks the Court] to infer,
discrimination is not a plausible conclusion." Iqbal, 556 U.S. at 682
(quotation and citation omitted).
Guided by Arlington Heights, the Court has considered the
material circumstances, including the history, trying as best it can to
discern whether Mineral Springs has plausibly alleged that racial
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animus partly motivated the State Defendants' actions and non-actions
involving the school districts in Howard and Hempstead Counties.
Mineral Springs has pleaded a strong case of re-segregative effects. But,
in the Court's judgment, it's implausible on the pleaded facts to
conclude that the State Defendants intentionally pursued those effects.
*
*
*
The motion to dismiss, NQ 25, is granted, with a carve-out for any
future claims about the 2017 amendments.
So Ordered.
D .P. Marshall (r.
United States District Judge
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Appendix A
Ark. Code Ann.§ 6-18-1906 (from Act 1227 of 2013)
(a) If the provisions of this subchapter conflict with a provision of an
enforceable desegregation court order or a district's court-approved
desegregation plan regarding the effects of past racial segregation in
student assignment, the provisions of the order or plan shall govern.
(b)
(1) A school district annually may declare an exemption under
this section if the school district is subject to the desegregation
order or mandate of a federal court or agency remedying the
effects of past racial segregation.
(2)
(A) An exemption declared by a board of directors under
this subsection is irrevocable for one (1) year from the date
the school district notifies the Department of Education of
the declaration of exemption.
(B) After each year of exemption, the board of directors may
elect to participate in public school choice under this section
if the school district's participation does not conflict with the
school district's federal court-ordered desegregation
program.
(3) A school district shall notify the department by April 1 if in
the next school year the school district intends to:
(A) Declare an exemption under this section; or
(B) Resume participation after a period of exemption.
(c)
(1)
(A) There is established a numerical net maximum limit on
school choice transfers each school year from a school
district, less any school choice transfers into the school
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district, under this section of not more than three percent
(3 %) of the school district's three-quarter average daily
membership for the immediately preceding school year.
(B) For the purpose of determining the percentage of school
choice transfers under this subsection, siblings who are
counted in the numerator as transfer students shall count as
one (1) student, and siblings who are counted in the
denominator as part of the average daily membership shall
count as one (1) student.
(2) Annually by June 1, the Department of Education shall report
to each school district the net maximum number of school choice
transfers for the current school year.
(3) If a student is unable to transfer due to the limits under this
subsection, the resident district shall give the student priority for
a transfer in the following year in the order that the resident
district receives notices of applications under § 6-18-1905, as
evidenced by a notation made by the district on the applications
indicating date and time of receipt.
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Appendix B
Ark. Code Ann. § 6-18-1906 (from Act 560 of 2015)
(a)
(1) If the provisions of this subchapter conflict with a provision of
an enforceable desegregation court order or a district's courtapproved desegregation plan regarding the effects of past racial
segregation in student assignment, the provisions of the order or
plan shall govern.
(2) If a school district claims a conflict under subdivision (a)(l) of
this section, the school district shall immediately submit proof
from a federal court to the Department of Education that the
school district has a genuine conflict under an active
desegregation order or active court-approved desegregation plan
with the interdistrict school choice provisions of this subchapter.
(b)
(1)
(A) There is established a numerical net maximum limit on
school choice transfers each school year from a school
district, less any school choice transfers into the school
district, under this section of not more than three percent
(3 %) of the enrollment that exists in the school district as of
October 15 of the immediately preceding school year.
(B) For the purpose of determining the percentage of school
choice transfers under this subsection, siblings who are
counted in the numerator as transfer students shall count as
one (1) student.
(C) A student eligible to transfer to a nonresident district
under § 6-15-430(c)(l), § 6-18-227, or § 6-21-812 shall not
count against the cap of three percent (3 %) of the resident or
nonresident district.
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(2) Annually by December 15, the department shall report to each
school district the net maximum number of school choice
transfers for the next school year.
(3) If a student is unable to transfer due to the limits under this
subsection, the resident district shall give the student priority for
a transfer in the first school year in which the district is no longer
subject to subdivision§ (b)(l) of this section in the order that the
resident district receives notice of applications under § 6-18-1905,
as evidenced by a notation made by the district on the
applications indicating date and time of receipt.
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