Davis v. Franks

Filing 177

ORDER granting 129 Motion of Judgment to the extent that it requests modification of the "Davis" Decree; "Davis" Decree (ECF No. 38) is MODIFIED to explicitly prohibit the segregative inter-district transfer of students from Ho pe to other school districts, unless such a transfer is requested for education or compassionate purposes and is approved by Hopes school board on a case-by-case basis; Hopes motion is denied as moot as to the remainder of Hopes alternative requests for relief. Signed by Honorable Susan O. Hickey on January 17, 2019. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ROSIE L. DAVIS, et al.
v.

PLAINTIFFS
Case No. 4:88-cv-4082

WILLIAM DALE FRANKS, et al.

DEFENDANTS

ARKANSAS DEPARTMENT OF EDUCATION and
ARKANSAS STATE BOARD OF EDUCATION

INTERVENORS

ORDER
Before the Court is the Hope School District’s (“Hope”) Motion for Declaratory Judgment,
or Alternatively, for Clarification of Previous Orders, or Alternatively, for Modification of
Previous Orders. (ECF No. 129). Plaintiffs have filed a response in support of the motion. (ECF
No 132). The Arkansas Department of Education (“ADE”) and the Arkansas State Board of
Education (“SBE”) have filed a response in opposition. (ECF No. 149). Hope has filed a reply.
(ECF No. 157). The Court finds the matter ripe for consideration.
I. BACKGROUND
On August 5, 1988, this case was filed by African American individuals who were
employed by or attended the Hope Public School District No. 1A in Hope, Arkansas. Plaintiffs
sought to redress alleged racial discrimination regarding Hope’s treatment of African American
students and faculty. On November 16, 1989, the Court 1 dismissed this case with prejudice subject
to the terms of a consent decree executed by the parties (the “Davis Decree”). (ECF Nos. 37, 38).

1

The Honorable Morris S. Arnold presided over this case at the time.

When dismissing this case, the Court retained jurisdiction to reopen this action upon cause shown
that the settlement had not been completed and that further litigation is necessary. (ECF No. 37).
On January 8, 1990, the Court filed the Davis Decree on this case’s docket. The Davis
Decree provides in relevant part that:
[I]t is the intent of this Decree to remedy any past discrimination based upon race
and to prevent any like discrimination from occurring in the future. Although this
action is brought on behalf of named black individual pupils and staff, the parties
hereby agree that this Decree shall be equally applied to all such students and staff
now and hereafter within the Hope School District No. 1A . . .
The Court, by consent of the parties, therefore enjoins, forbids and restrains the
defendants from hereinafter engaging in any policies, practices, customs or usages
of racial discrimination in any of its school operations including, but not limited to,
faculty assignments, student assignments, and the treatment of black and other
minority pupils within the school system . . .
The Court shall have continuing jurisdiction of this Consent Decree in order to
[e]nsure compliance with the spirit and terms of this Decree.
(ECF No. 38, ¶¶ 3, 4, 21).
The Arkansas Public School Choice Act of 1989 (the “1989 Act”) was in effect at the time
the parties executed the Davis Decree. The 1989 Act provided for a school choice program
whereby a student could apply to attend a public school in a district that the student did not reside
in, subject to certain limitations. The 1989 Act provided further that “[n]o student may transfer to
a nonresident district where the percentage of enrollment for the student’s race exceeds that
percentage in his resident district” and that “[i]n any instance where the foregoing provisions
would result in a conflict with a desegregation court order, the terms of the order shall govern.”
(ECF No. 129-2, §§ 11(a-b)).
In 2013, the Arkansas Public School Choice Act of 2013 (the “2013 Act”) was enacted,
expressly repealing the 1989 Act. The 2013 Act again allowed students to apply to attend a nonresident public school district. However, the 2013 Act did not contain the 1989 Act’s limiting
2

language barring segregative inter-district transfers. 2 The 2013 Act allowed any school district to
annually declare itself exempt from participating in school choice if said participation would
conflict with the school district’s obligations under a federal court’s “desegregation plan regarding
the effects of past racial segregation in student assignment” or a federal court order “remedying
the effects of past racial segregation.” (ECF No. 129-5, p. 11). Any school district that made this
declaration would be exempt from participating in school choice for that school year.
In 2015, the Arkansas Public School Choice Act of 2015 (the “2015 Act”) was enacted,
thereby amending the 2013 Act. The 2015 Act, among other things, eliminated the school districts’
ability to declare themselves exempt from participating in school choice due to a conflict with
existing obligations under a federal court’s desegregation plan or order. Instead, the 2015 Act
required that a school district wishing to be exempt from participating in school choice must submit
proof to the ADE “that the school district has a genuine conflict under an active desegregation
order or active court-approved desegregation plan with the [2015 Act.]” (ECF No. 129-6, p. 5).
If the school district submitted proof of an order or plan to the ADE, the provisions of the order or
plan would govern, thereby exempting the school district from participating in school choice.
In 2017, the Arkansas General Assembly passed Act 1066 of the Regular Session of 2017
(the “2017 Act”), thereby amending the 2015 Act. The 2017 Act, among other things, amended
the 2015 Act’s language allowing school districts to seek an exemption from participating in
school choice. Under the 2017 Act, school districts seeking to be exempt from participation in
school choice must now submit proof to the ADE “that the school district has a genuine conflict
under an active desegregation order or active court-approved desegregation plan that explicitly

The term “segregative,” as used throughout this Order, refers to a student transfer from a resident school district to
a non-resident school district where the percentage of enrollment for the transferring student’s race exceeds that
percentage in the student’s resident district.
2

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limits the transfer of students between school districts.” (ECF No. 129-7, p. 2) (emphasis added).
The ADE evaluates school districts’ applications for an exemption from school choice and
determines whether to grant an exemption. The SBE decides any appeals of the ADE’s decisions
regarding school choice exemption applications.
From 2013 through 2017, Hope annually applied for exemptions from participating in
school choice pursuant to the school choice law in effect at the time. Each year, the ADE and SBE
observed these declared conflicts with school choice and included Hope on a public list of school
districts not participating in school choice. Accordingly, Hope did not participate in school choice
at all while the 2013 Act and 2015 Act were in effect.
On December 27, 2017, Hope applied for an exemption from participating in school choice
under the 2017 Act for the 2018-2019 school year and submitted supporting documents to the
ADE. On January 19, 2018, the ADE denied Hope’s request for an exemption, finding that Hope
failed to demonstrate that it was subject to a federal court’s active desegregation order “explicitly
limiting the interdistrict transfer of students.” (ECF No. 129-13) (emphasis in original). The ADE
found that the Davis Decree, which Hope submitted, among other things, as proof of its conflict,
did not explicitly limit inter-district student transfers and, accordingly, the ADE concluded that
Hope would be required to participate in school choice for the 2018-2019 school year.
On February 2, 2018, Hope appealed the ADE’s decision to the SBE. The SBE heard
Hope’s appeal on March 8, 2018 and, in a subsequent order dated March 26, 2018, upheld the
ADE’s decision that Hope would not receive an exemption and, therefore, must participate in
school choice for the 2018-2019 school year. (ECF No. 129-16).
On May 14, 2018, Hope filed the instant Motion for Declaratory Judgment, or
Alternatively, for Clarification of Previous Orders, or Alternatively, for Modification of Previous

4

Orders. (ECF No. 129). Hope states that it is still subject to the obligations imposed by the Davis
Decree and that participation in school choice would have a segregative impact on Hope, thereby
causing it to violate the Davis Decree. Accordingly, Hope states that it has a conflict with taking
part in school choice pursuant to the 2017 Act. Hope seeks, through various alternative means of
relief, a finding that it is prohibited from taking part in school choice and/or a declaration that
portions of the 2017 Act are unconstitutional. On May 22, 2018, Plaintiffs filed a response
supporting the instant motion. (ECF No. 132).
On May 23, 2018, the Court issued an order certifying Hope’s constitutional challenge and
sending notice to the Arkansas Attorney General’s Office pursuant to Federal Rule of Civil
Procedure 5.1(b). (ECF No. 134). On June 15, 2018, the ADE and SBE filed a motion to intervene
in this case for the limited purpose of opposing the instant motion. (ECF No. 142). On June 22,
2018, the Court held a status conference in which Hope, Plaintiffs, and counsel from the Arkansas
Attorney General’s Office participated. On July 2, 2018, the Court granted the ADE and SBE’s
motion to intervene, thereby allowing those parties to intervene for the limited purpose of opposing
the instant motion. (ECF No. 148). On July 16, 2018, the ADE and SBE filed their response in
opposition to the instant motion. (ECF No. 149).
On August 1, 2018, the Court held an evidentiary hearing on Hope’s separate motion for
preliminary injunctive relief. At the hearing, the parties offered evidence and witness testimony,
much of which is also relevant and applicable to the instant motion. On September 11, 2018, Hope
informed the Court that it did not desire an additional evidentiary hearing regarding the instant
motion. (ECF No. 171). On September 21, 2018, the ADE and SBE informed the Court that they
also did not desire an additional evidentiary hearing regarding the instant motion. (ECF No. 172).
Accordingly, the Court finds the matter fully briefed and ripe for consideration.

5

II. DISCUSSION
Hope seeks a ruling that it is prohibited from taking part in school choice. Specifically,
Hope asks that the Court confirm its conflict with participating in school choice and declare void
the SBE’s March 26, 2018 order requiring that Hope participate in school choice. Hope asks the
Court to do so through one of the following means: (1) modifying the Davis Decree to prohibit
segregative inter-district transfers in light of changes in Arkansas law, occurring with the 2013
repeal of the 1989 Act and the subsequent enactment of the 2017 Act; (2) clarifying that the Davis
Decree, as written, prohibits segregative inter-district transfers; (3) issuing a declaratory judgment
confirming that Hope has a conflict with participating in school choice due to the Davis Decree
and ordering the SBE to reverse its March 26, 2018 order requiring Hope to participate in school
choice; or (4) declaring that the 2017 Act is unconstitutional to the extent that it authorizes the
ADE to determine whether or not a school district has a conflict with participating in school choice.
The Court will begin by addressing Hope’s request for modification of the Davis Decree.
If necessary, the Court will then address Hope’s requests for clarification of the Davis Decree, for
a declaratory judgment, and that portions of the 2017 Act be declared unconstitutional.
A. Modification of the Davis Decree
Hope asks that the Court modify the Davis Decree to prohibit segregative inter-district
transfers in light of significant changes in Arkansas’ school choice laws that were not contemplated
by the Court or by the parties to this case when they entered into the Davis Decree.
Federal Rule of Civil Procedure 60(b) authorizes modification of consent decrees. Smith
v. Bd. of Educ. of the Palestine-Wheatley Sch. Dist., 769 F.3d 566, 570 (8th Cir. 2014). “Rule
60(b)(5) provides that a party may obtain relief from a court order when ‘it is no longer equitable
that the judgment should have prospective application,’ not when it is no longer convenient to live

6

with the terms of a consent decree.” Id. (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S.
367, 383 (1992)); id. at 572 (“Rufo and its progeny grant federal courts of equity substantial
flexibility to adapt their decrees to changes in the facts or law.”). Further, the Eighth Circuit has
found that modification of consent decrees in school desegregation cases is permissible under
certain circumstances. See id. (affirming a district court’s modification of a consent decree in a
school desegregation case).
“A party seeking modification of a consent decree ‘must [first] establish that a significant
change in facts or law warrants revision of the decree.’” Little Rock Sch. Dist. v. Pulaski Cnty.
Special Sch. Dist., No. 1, 56 F.3d 904, 914 (8th Cir. 1995) (quoting Rufo, 502 U.S. at 393). If the
movant carries this burden, the court “must then determine whether the proposed modification is
suitably tailored to the changed circumstance.” Id.
The Court must first determine whether a significant change in facts or law warrants
modification of the Davis Decree. If the Court answers that question in the affirmative, it will then
determine whether Hope’s proposed modification is suitably tailored to the changed circumstance.
1. Significant Change in Facts or Law
Hope contends that the repeal of the 1989 Act and the passage of the 2013, 2015, and 2017
Acts qualifies as a significant change that warrants modification, arguing that the changes in the
statutory framework now prevent Hope from complying with its constitutional obligations to avoid
taking any action with the natural and foreseeable consequence of causing segregative impact
within Hope. Hope argues further that “[t]he State’s shift from enacting laws that prohibited
segregation and encouraged integrative transfers to advocating for school choice above all else,
including desegregation efforts, is another important change in circumstance justifying
modification.” (ECF No. 130, p. 23).

7

The 1989 Act was in effect when the parties executed the Davis Decree. The 1989 Act
included limitations stating that “[n]o student may transfer to a nonresident district where the
percentage of enrollment for the student’s race exceeds that percentage in his resident district” and
“[i]n any instance where the foregoing provisions would result in a conflict with a desegregation
court order, the terms of the order shall govern.” (ECF No. 129-2, §§ 11(a-b)). The State of
Arkansas subsequently repealed the 1989 Act and enacted the 2013 Act, which did not contain the
1989 Act’s limiting language prohibiting segregative student transfers, and instead allowed school
districts to declare themselves exempt from participating in school choice if participation would
conflict with the school district’s obligations under a court desegregation plan or order.
Subsequent amendments to the school choice statutory framework further limited school districts’
ability to obtain an exemption from participating in school choice.
Under the current iteration of Arkansas’ school choice law—the 2017 Act—a school that
claims a conflict with participating in school choice must show that it is subject to an active and
enforceable desegregation court order or plan that “explicitly limits the transfer of students
between school districts.” Ark. Code Ann. § 6-18-1906(a)(2). Accordingly, for Hope to receive
an exemption from participating in school choice under the 2017 Act, it must show that it is subject
to a desegregation order that explicitly bars “inter-district” student transfers.
As previously mentioned, a party seeking modification of a consent decree must show that
significant changes in facts or law warrant revision of the decree. Rufo, 502 U.S. at 393.
“Ordinarily, . . . modification should not be granted where a party relies upon events that actually
were anticipated at the time it entered into a decree.” Mays v. Bd. of Educ. of Hamburg Sch. Dist.,
834 F.3d 910, 919 (8th Cir. 2016) (quoting Rufo, 502 U.S. at 385). However, changes in statutory
law may warrant modification. See Rufo, 502 U.S. at 388 (noting that “modification of a consent

8

decree may be warranted when the statutory or decisional law has changed to make legal what the
decree was designed to prevent.”). Modification may also be warranted when changed factual
conditions make compliance with the decree substantially more onerous or when a decree proves
to be unworkable because of unforeseen obstacles. Id. at 384.
Hope states that modification is warranted because, at the time the Davis Decree was
executed, the 1989 Act prohibited segregative transfers of both non-black and black students to
non-resident school districts. Hope argues that the 1989 Act’s plain language eliminated the need
for the parties to draft the Davis Decree in a way that also expressly prohibited segregative interdistrict transfers. Hope asserts that “[f]rom entry of the 1990 Davis Decree through the 2013
legislative session, Hope was able to rely on the restrictions articulated in the 1989 Act as a means
of preventing private choice from interfering with its efforts to desegregate.” (ECF No. 130, p.
21). However, Hope argues that it is now unable to comply with its constitutional obligations
because the 1989 Act was repealed and replaced with a school choice law that does not contain
express limitations against segregative inter-district transfers and instead only affords exemptions
from participating in school choice to school districts that can produce a court order explicitly
prohibiting the transfer of students between school districts.
The ADE and SBE argue in response that modification of the Davis Decree is not warranted
in this instance. 3 Without citing to authority, the ADE and SBE argue that the repeal of the 1989
Act and the subsequent passage of the 2013, 2015, and 2017 Acts is not a significant change in
circumstances that warrants revision of a consent decree. In a separate section of their brief, the
The Court notes that, although not asserted in the section responding to Hope’s request for modification, the ADE
and SBE make the threshold argument that Hope does not have standing to challenge the constitutionality of the 2017
Act or to request declaratory relief. To the extent that the ADE and SBE also intended to argue that Hope does not
have standing to request modification of the Davis Decree, the Court finds that argument unavailing. The Eighth
Circuit has made clear in a desegregation context that school districts that are subject to a consent decree may seek
modification of the consent decree. See, e.g., Smith, 769 F.3d at 570. Accordingly, the Court finds that Hope has
standing to request modification of the consent decree entered into by Hope in this case.
3

9

ADE and SBE also argue that the Davis Decree does not specifically prohibit inter-district student
transfers, but instead prohibits unconstitutional conduct occurring within Hope itself. The ADE
and SBE argue that the Court should not read “inter-district” language into the Davis Decree.
Upon consideration, the Court finds that the repeal of the 1989 Act and its subsequent
replacement by the 2013, 2015, and 2017 Acts is a significant change in circumstances. The 1989
Act, which was in effect when the parties executed the Davis Decree, expressly prohibited all
segregative inter-district student transfers. The Davis Decree contains no language expressly
prohibiting inter-district student transfers, and instead bars Hope and the other Defendants from
engaging in any further “policies, practices, customs or usages of racial discrimination in any of
its school operations including, but not limited to . . . student assignments.” (ECF No. 38, ¶ 4)
(emphasis added). The Davis Decree also provides that the parties thereto will endeavor to “make
the Hope School District a model school district in Arkansas for desegregation, integration, and
quality education.” (ECF No. 38, ¶ 23).
The Eighth Circuit has instructed that courts interpreting a consent decree:
are not to ignore the context in which the parties were operating, nor the
circumstances surrounding the order . . . because a consent decree is a particular
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.
United States v. Knote, 29 F.3d 1297, 1300 (8th Cir. 1994) (internal quotation marks omitted).
Although the Davis Decree does not expressly prohibit inter-district transfers, the Court finds that
the Davis Decree clearly intended to prohibit any racial discrimination occurring within the Hope
school district, including preventing student transfers which result in segregation of Hope’s student
body. Moreover, it was unnecessary for the parties to draft the Davis Decree in a way that
explicitly barred segregative inter-district student transfers because that limitation was
contemplated by the school choice law in place at the time.
10

Changes in statutory law may be significant changes in circumstances, and the Court finds
that the repeal of the 1989 Act and the subsequent enactment of the 2017 Act is a significant
change. Rufo, 502 U.S. at 388. Moreover, the Court finds that the 2017 Act’s requirement that a
school district’s produced court order must explicitly bar inter-district transfers presents an
unforeseen obstacle that causes the Davis Decree to be unworkable, as the parties drafted the Davis
Decree at a time in which including that language was unnecessary. Id. at 384. From 1990 until
2017, Hope was able to comply with the Davis Decree’s obligation to refrain from engaging in
any action that would have a discriminatory impact, including student transfers. From the
enactment of the Davis Decree until 2013, Hope did not experience any segregative inter-district
transfers because such transfers were prohibited by the existing statutory scheme. Even after the
repeal of the 1989 Act and the subsequent enactment of the 2013 Act, Hope did not experience
any segregative inter-district transfers because it was able to declare itself exempt from
participating in school choice. Hope still did not experience any segregative inter-district transfers
while the 2015 Act was in place because the ADE and SBE found the Davis Decree to be sufficient
evidence of a conflict, allowing Hope to claim an exemption from participating in school choice.
However, the changes to the statutory framework brought about with the 2017 Act
currently prevent Hope from claiming an exemption from participating in school choice. Hope is,
for the first time since 1990, now being required to allow students to make segregative inter-district
transfers pursuant to school choice because the Davis Decree does not explicitly bar inter-district
student transfers as now required by the 2017 Act. Therefore, the Court finds that Hope’s asserted
change in circumstances satisfies its burden because changes in the governing school-choice
statutory framework—and the ensuing requirements and limitations—have an actual effect on
Hope’s ability to comply with the Davis Decree. Moreover, the ADE and SBE do not argue, and

11

there is no evidence in the record to indicate, that the parties to the Davis Decree contemplated in
1990 that the 1989 Act would be repealed and replaced with a school choice law that requires that
the Davis Decree contain specific restrictive language that was contemplated by and built into the
1989 Act. Accordingly, the Court finds that Hope has shown that a significant change in
circumstances is present, justifying modification of the Davis Decree. The Court will now
determine whether Hope’s proposed modification is suitably tailored to the changed circumstance.
2. Suitably Tailored Modification
Hope asks the Court to modify the Davis Decree to reflect the changes in the governing
school-choice statutory framework since 1990. Specifically, Hope asks that the Court modify the
decree to explicitly prohibit segregative inter-district transfers unless requested as otherwise
provided by Arkansas law for educational or compassionate purposes and approved by the Hope
school board. (ECF No. 129, pp. 17-18).
The ADE and SBE argue that modification of the Davis Decree is not suitably tailored to
the changed circumstances. The ADE and SBE argue that Hope’s proposed modification is an
inter-district remedy, which is impermissible in this situation because the Court has not found an
inter-district constitutional violation between Hope and any of the school districts accepting
student transfers from Hope. The ADE and SBE also argue, without citing to supporting authority,
that any modification would have to be based on Hope’s “implied unitary status.”
A movant seeking a modification of a consent decree must show that the proposed
modification is suitably tailored to the changed circumstance. Id. at 391. To be “suitably tailored
to the changed circumstance,” a modification “must not create or perpetuate a constitutional
violation,” or “strive to rewrite a consent decree so that it conforms to the constitutional floor.”
Id.

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As an initial matter, the Court will take up the ADE and SBE’s argument that any
modification would have to be based on Hope’s “implied unitary status.” Although the ADE and
SBE do not explain this argument in the section of their brief opposing modification, they argue
elsewhere in their response that the Court should not grant the instant motion because this case
was initiated thirty years ago and there is no evidence that Hope has failed to reach unitary status
or has failed to comply with the Davis Decree since this case’s dismissal several decades ago. To
the extent that the ADE and SBE intended to support their “implied unitary status” argument with
this line of argument, the Court finds the argument unpersuasive because Hope has not obtained
unitary status.
It is well settled that a federal court supervising a school system in a desegregation case
may order an incremental or partial withdrawal of its supervision and control after finding that the
school system has achieved “unitary” status. Freeman v. Pitts, 503 U.S. 467, 489 (1992). The
ADE and SBE appear to acknowledge this in their brief, as they discuss the presumption that arises
“when a school district is declared to have reached unitary status.” (ECF No. 149, p. 16) (emphasis
added). No party to this case has ever asked the Court to determine whether Hope has achieved
unitary status, nor has the Court declared that Hope has indeed achieved unitary status. The ADE
and SBE cite no authority for the proposition that a school district may attain an “implied unitary
status” over time by complying with its constitutional requirements, and the Court is unaware of
any such authority. Thus, the Court finds unavailing the ADE and SBE’s argument that the Court
should deny the instant motion because of an implicitly attained unitary status, and the Court will
not address the argument further in this Order.
With that ancillary argument now addressed, the Court finds that Hope’s proposed
modification is suitably tailored to the changed circumstances. The ADE and SBE’s primary

13

contention is that the Court should not modify the Davis Decree to expressly prohibit segregative
inter-district student transfers because it would be an impermissible inter-district remedy in that
this case originally concerned intra-district conduct attributable only to Hope. The ADE and SBE
argue that the Court has not found in this case that Hope and another school district committed an
inter-district constitutional violation and, thus, any remedy fashioned to address Hope’s conduct
must be limited solely to Hope. The ADE and SBE do not elaborate further on this point, nor do
they cite authority supporting the proposition that modification of a consent decree under
circumstances like this case is an inter-district remedy. However, the ADE and SBE argue in their
response to a separate motion in this case that granting the relief Hope seeks would “effectively
enjoin [other school] districts from accepting [Hope’s] transfer students . . . by way of a
modification to a consent order entered in a case to which no other district was ever a party.” (ECF
No. 161, p. 17).
Assuming arguendo that the ADE and SBE’s present argument is also based on this line
of thinking, the Court finds the argument unpersuasive. The ADE and SBE correctly point out
that an “interdistrict remedy is appropriate only upon a showing of a constitutional violation within
one district that produces a significant segregative effect in another district.” Little Rock Sch. Dist.
v. Pulaski Cnty. Special Sch. Dist. No. 1, 778 F.2d 404, 444 (8th Cir. 1985) (internal quotation
marks omitted). The Supreme Court has interpreted this rule to mean that “district courts may not
restructure or coerce local governments or their subdivisions.” Liddell v. State of Mo., 731 F.2d
1294, 1308 (8th Cir. 1984) (discussing Hills v. Gautreaux, 425 U.S. 284 (1976)). In other words,
absent proof of an inter-district violation, a court-imposed remedy exceeds its scope when it is
“imposed upon governmental units that were neither involved in nor affected by the constitutional
violation.” Milliken v. Bradley, 433 U.S. 267, 282 (1977).

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Upon consideration, the Court finds that Hope’s proposed modification would not
constitute an inter-district remedy. Hope asks the Court to modify the Davis Decree to prohibit
Hope from allowing segregative inter-district student transfers to other school districts. To be fair,
this modification would indirectly prevent other school districts from receiving Hope transfer
students via school choice because Hope would not be allowed to permit segregative inter-district
transfers. However, the ADE and SBE cite no binding authority finding that a remedy like the
modification Hope seeks is an inter-district remedy, and the Court is unaware of any such
authority. 4 Rather, the Eighth Circuit has found inter-district remedies where courts directly order
action that directly impacts multiple school districts. See, e.g., Edgerson on Behalf of Edgerson v.
Clinton, 86 F.3d 833, 837 (8th Cir. 1996) (describing forced consolidation of school districts and
imposing an inter-district magnet school plan as inter-district remedies); Milliken I, 418 U.S. at
754 (1974) (characterizing the creation of an inter-district student bussing plan as an inter-district
remedy).
The modification would not directly restrict any other school district’s ability to participate
in school choice or to receive students from other school districts that are otherwise eligible to
participate in school choice. This minor intrusion into other school districts’ ability to receive
Hope transfer students does not directly impact those other school districts. Therefore, the Court
finds that the modification sought by Hope is not an impermissible inter-district remedy.
Hope’s proposed modification modifies the terms of the Davis Decree to include the
necessary language required by the 2017 Act, thereby letting Hope prohibit segregative inter-

4
In Milliken v. Bradley, the case cited primarily by the ADE and SBE in support of their argument, the United States
Supreme Court found an impermissible inter-district remedy where the federal district court forced multiple school
districts to consolidate to remedy a condition of segregation found to exist in only one of the school districts. 418
U.S. 717, 744, 752 (1974). In the case at bar, Hope does not ask the Court to force consolidation of it and any other
school district.

15

district transfers from Hope to other school districts, which it was able to do from 1990 until the
enactment of the 2017 Act. Beginning with the 2019-2020 school year, the Davis Decree, as
modified, would explicitly feature the newly added language required by the 2017 Act. Thus, the
Davis Decree would constitute evidence of a “genuine conflict under an active desegregation order
or active court-approved desegregation plan that explicitly limits the transfer of students between
school districts.” Ark. Code Ann. § 6-18-1906(a)(2). Thus, moving forward, no students could
undergo a segregative inter-district transfer from Hope to another school district pursuant to the
2017 Act. The Court finds that this modification is suitably tailored to address the changed
circumstance that occurred when the 1989 Act was repealed and subsequently replaced by the
2013 Act, the 2015 Act, and—most importantly—the 2017 Act.
The Court will not require that the students who transferred from Hope to other school
districts pursuant to school choice for the 2018-2019 school year return to Hope. At the time those
students transferred, the Davis Decree did not contain the necessary language contemplated by the
2017 Act for Hope to claim an exemption from school choice. For this same reason, the Court
will not void the SBE’s March 26, 2018 order requiring Hope to participate in school choice for
the 2018-2019 school year. At the time the SBE’s March 26, 2018 order was entered, the Davis
Decree did not feature the necessary language contemplated by the 2017 Act for Hope to attain an
exemption from school choice. The modified Davis Decree shall have prospective effect, allowing
Hope to claim an exemption from school choice beginning with the 2019-2020 school year.
3. Conclusion
The Court has determined that “a significant change in facts or law warrants revision of
the [Davis Decree.]” Little Rock Sch. Dist., 56 F.3d at 914. The Court has also determined that

16

“the proposed modification is suitably tailored to the changed circumstance.” Id. Accordingly,
the Court shall modify the Davis Decree in accordance with Hope’s proposed modification.
B. Other Requested Forms of Relief
Hope also requested that the Court grant it relief via other alternative methods. However,
in light of the Court’s above finding that modification of the Davis Decree is warranted, the Court
finds it unnecessary to address the parties’ arguments regarding the other forms of relief sought.
III. CONCLUSION
For the above-discussed reasons, the Court finds that Hope’s motion (ECF No. 129) should
be and hereby is GRANTED to the extent that it requests modification of the Davis Decree.
Accordingly, the Davis Decree (ECF No. 38) is hereby MODIFIED to explicitly prohibit the
segregative inter-district transfer of students from Hope to other school districts, unless such a
transfer is requested for education or compassionate purposes and is approved by Hope’s school
board on a case-by-case basis. Hope’s motion (ECF No. 129) is DENIED AS MOOT as to the
remainder of Hope’s alternative requests for relief.
IT IS SO ORDERED, this 17th day of January, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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