Teague et al v. Arkansas Board of Education et al
Filing
98
MEMORANDUM OPINION AND ORDER, granting in part and denying in part 69 Motion for Declaratory and Injunctive Relief; denying 71 Motion for Summary Judgment; denying 74 Motion for Summary Judgment. Signed by Honorable Robert T. Dawson on June 8, 2012. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
RON AND KATHY TEAGUE, on and
behalf of minor children, T.T.
and S.T.; DARRIN AND JULIE HARDY,
on and behalf of minor child,
C.H.; RHONDA RICHARDSON on and
behalf of minor child A.R.;
MARK AND JENNIFER DRAPER on and
behalf of minor children, A.D. and S.D.,
v.
PLAINTIFFS
CASE NO. 10-6098
ARKANSAS BOARD OF EDUCATION;
JIM COOPER, BRENDA GULLETT,
SAMUEL LEDBETTER, ALICE
MAHONY, DR. BEN MAYS,
JOE BLACK, TOYCE NEWTON,
MIREYA REITH, AND VICKI SAVIERS,
in their official capacity;
MAGNET COVE SCHOOL DISTRICT;
KAREN SCOTT, DANNY LINAM,
LISA LOFTIS, KIM BRAY, AND
JACK RYNDERS, in their
official capacity;
THE ARKANSAS DEPARTMENT OF EDUCATION,
DEFENDANTS
CAMDEN FAIRVIEW SCHOOL DISTRICT
NO. 16 OF OUACHITA COUNTY;
EL DORADO SCHOOL DISTRICT #15,
UNION COUNTY, AR
INTERVENORS
MEMORANDUM OPINION AND ORDER
Some
32
years
after
the
Little
Rock
School
integration
crisis made international headlines, the Arkansas Legislature
adopted
a
statute
that
was
hoped
segregation in its public schools.
provision
that
would
prevent
its
help
in
stemming
That statute included a
schools
Page 1 of 32
would
from
becoming
more
segregated
while
permitting
outside their home districts.
students
to
transfer
to
schools
It could be argued that no state
has been scrutinized as much as Arkansas with respect to the
integration
and
segregation
of
its
public
schools.
The
legislation was intended to permit the free transfer of students
within its school districts provided that the transfers did not
adversely
impact
the
racial
make-up
of
receiving the transferring students.
the
school
district
The legislature was no
doubt properly motivated in its desire to end segregation, but
the question that must be addressed is whether the legislation
infringes
on
federally
protected
rights.
There
was
no
litigation concerning this statute until litigation was filed in
this Court.
Plaintiffs contend that this race-based restriction on the
ability
of
students
to
transfer
between
school
districts
contained in the Arkansas Public School Choice Act of 1989,
Arkansas Code § 6-18-206, is unconstitutional1.
Specifically,
Plaintiffs contend that Ark. Code Ann. 6-18-206(f) violates the
Equal
Protection
Clause
of
the
Fourteenth
Amendment
to
the
United States Constitution.
Currently before the Court are Plaintiff’s Motion for Entry
of Judgment for Declaratory and Injunctive Relief and Brief in
1
In addition, Plaintiffs originally alleged violations of Title VII of the Civil Rights Act of 1964 and the Illegal Exaction provision
of the Arkansas Constitution (Art. 16, § 13). (Doc. 1). According to the parties’ Stipulation, these claims have been dismissed
with prejudice. (Doc. 77, ¶ 2-5).
Page 2 of 32
Support (Docs. 69, 70), State Defendants’ Motion for Summary
Judgment
and
Brief
in
Support
(Docs.
71,
72),
Intervenors’
Motion for Summary Judgment and Brief in Support (Docs. 74, 75)
and related documents, responses and replies. The Court2 heard
oral arguments on these motions based on stipulated facts on
April 16, 2012.
I.
Background
This matter originated with a lawsuit filed in this Court
on October 21, 2008.
In Hardy et al. v. Malvern School District
et al., Plaintiffs/Parents filed suit against the Malvern School
District, its board members, and the Arkansas State Board of
Education (“ASBE”). No. 08-CV-6094, 2010 WL 956696 (W.D. Ark.
March
16,
2010).
The
Court
found
that
the
Malvern
School
District was entitled to summary judgment because the undisputed
material
facts
demonstrated
that
it
played
no
role
in
the
enforcement of Ark. Code Ann. § 6-18-206(f) against Plaintiffs
and that Plaintiffs’ claims against the members of the ASBE were
barred by the doctrine of sovereign immunity.
Based on these
holdings, the Court did not reach the issues of whether Ark.
Code Ann.
§ 6-18-206(f) is unconstitutional severable from the
remainder of the Arkansas Public School Choice Act of 1989.
2
United States Magistrate Judge Barry A. Bryant, presiding.
Page 3 of 32
The
instant action was filed on December 21, 2010, the matter is
fully briefed and these issues are now before the Court3.
II.
Standard of Review
Summary judgment is appropriate when, viewing the facts and
inferences in the light most favorable to the nonmoving party,
“‘the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.’”
Best Buy Stores, L.P. v. Benderson-Wainberg
Associates, 668 F.3d 1019, 1026 (8th Cir. 2012) (quoting Alvarez
v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 416 (8th Cir.
2010)(quoting Fed.R.Civ.P. 56(c)(2)).
submitted
stipulations
as
to
the
Here, the parties have
claims,
parties
and
facts,
including census and school enrollment data, desegregation cases
around the state and choice transfers in Arkansas.
Intervenors
provided “expert”4 reports from Dr. Jerry Guess, Camden Fairview
School
District
District
Superintendent,
Superintendent
historian on race.
and
Bob
Griffin
Watson,
J.
El
Dorado
Stockley,
School
author
and
Because there are no issues of material fact
in dispute, disposition by summary judgment is appropriate.
III. Arkansas Public School Choice
3
The parties agreed to substitute the current members of the Arkansas State Board of Education as defendants for any past
members. (Doc. 77, ¶ 9).
4
The parties agreed and stipulated that these reports were admitted into evidence in lieu of live testimony to be used by the Court
“for whatever they are worth.” (Doc. 77, ¶158).
Page 4 of 32
In Arkansas, children between the ages of 5 and 17 are
required to attend either public, private, parochial or home
school.
Ark. Code Ann. § 6-18-201.
The general rule in the
State is that parents who send their children to public school
must do so in the district in which they live.
§ 6-18-202.
Ark. Code. Ann.
There are exceptions to this rule.
If a parent works at least half-time at a public school in
another district, their child may attend school in the district
in which the parent works instead of the district in which they
reside.
Ark.
Code
Ann.
§
6-18-203(b)(1)5.
If,
however,
unforeseen circumstances result in a finding by a court that a
school district is unlawfully segregated as a result of children
attending school where their parents work, then the children
must attend their resident district.
A high school student can attend up to 50% of his or her
classes in another district if the courses they need to meet
their educational objectives are not available in the resident
Ark. Code Ann. § 6-18-204 (b)(2)6.
district.
A student may also
attend a school outside their resident district if they are
enrolled
in
an
alternative
education
program,
secondary
area
vocational center or community-based education program, as long
as
there
is
a
compact
between
the
5
1983 Ark. Acts 822.
6
1983 Ark. Acts 14.
Page 5 of 32
resident
and
receiving
districts.
a
student
district.
Ark. Code Ann. § 6-18-204(c).
to
be
In
directly
order
to
enrolled
qualify
in
These statutes permit
a
for
non-resident
attendance
school
under
this
provision, the student is required to file a projected course of
study with his or her principal or school counselor and receive
the receiving district’s permission.
204(b)(3).
Ark. Code Ann. § 6-18-
In addition, the resident district must pay tuition
to the receiving district.
Ark. Code Ann. § 6-18-204 (b)(4).
Children who live at least fifteen miles from the school in
their resident district but within seven miles of a school in an
adjoining district may petition their resident district for a
transfer to the adjoining district.
Ark. Code Ann. § 6-18-
307(a)(1)7.
A student may petition to transfer from one school district
to another with the permission of both his or her resident and
receiving school districts.
“legal
transfer”
of
a
Ark. Code Ann. § 6-18-3168.
student
from
one
district
to
This
another
places the responsibility for the education of the student on
the receiving district and permits the receiving district to
count these children in average daily membership for state aid
money, but does not transfer local tax money from the resident
district.
Tuition
may
be
charged
7
1983 Ark. Acts 61.
8
1987 Ark. Acts 464.
Page 6 of 32
to
either
the
parent
or
resident
district.
These
transfers
years for renewal consideration.
(g).
are
reviewed
every
four
Ark. Code Ann. § 6-18-316(d)-
Legal transfers are prohibited when either the resident or
the receiving district is under a desegregation-related court
order or has ever been under such an order and when the transfer
would
negatively
affect
the
racial
balance
which is or has been under that order.
317(a)(1)-(2).
of
that
district
Ark. Code Ann. § 6-18-
A district not currently under a desegregation-
related court order but which has been under such an order in
the past may apply for a waiver.
Following
the
enactment
Ark. Code Ann. § 6-18-3189.
of
the
previous
Acts,
the
legislature created the Arkansas Public School Choice Act of
1989.
Ark. Code Ann. § 6-18-20610.
The Arkansas Public School
Choice Act sets out the findings and objectives of its drafters:
The General Assembly finds that the students in
Arkansas’s public schools and their parents will
become more informed about and involved in the public
educational system if students and their parents or
guardians are provided greater freedom to determine
the most effective school for meeting their individual
educational needs. There is no right school for every
student, and permitting students to choose from among
different schools with differing assets will increase
the likelihood that some marginal students will stay
in school and that other, more motivated students will
find their full academic potential.
The General Assembly further finds that giving more
options to parents and students with respect to where
the students attend public school will increase the
9
1987 Ark. Acts 762.
10
1989 Ark. Acts 609.
Page 7 of 32
responsivenes and effectiveness of the state’s schools
since teachers, administrators, and school board
members will have added incentive to satisfy the
educational needs of the students who reside in the
district.
The General Assembly therefore finds that these
benefits of enhanced quality and effectiveness in our
public schools justify permitting a student to apply
for admission to a school in any district beyond the
one in which the student resides, provided that the
transfer by this student would not adversely affect
the desegregation of either district.
Ark.
Code
Ann.
§
6-18-206(a)(2)-(4).
However,
the
choice
created by this section is subject to an important limitation:
No student may transfer to a non-resident district where the
percentage of enrollment for the student’s race exceeds that
percentage in the student’s resident district.
Ark. Code Ann.
§ 6-18-206(f)(1).
There are three exceptions to the limitation in Ark. Code
Ann.
§
6-18-206(f)(1).
Subsection
(f)(1)
is
First,
permissible
a
transfer
if
the
in
violation
resident
and
of
non-
resident school districts are in the same county and the racial
composition
Department
of
of
each
district,
Education,
as
remains
overall minority percentage.
determined
within
25%
by
the
Arkansas
of
the
county’s
Ark. Code Ann. § 6-18-206(f)(2).
Second, a transfer is exempt if neither the resident nor the
non-resident district has a minority percentage of the student’s
race greater than 10%.
Ark. Code Ann. § 6-18-206(f)(3).
Third,
where the provisions of Ark. Code Ann. § 6-18-206(f) conflict
Page 8 of 32
with a desegregation order or court-approved desegregation plan,
the terms of the order or plan prevail over the choice statute.
Ark. Code Ann. § 6-18-206(f)(4).
Before a student can transfer to another school district
under the Arkanas Public School Choice Act of 1989, their parent
or
guardian
submitting
must
an
apply
to
application,
the
non-resident
approved
by
the
district
by
Department
of
Education, to the non-resident district’s superintendent.
Code
Ann.
§
6-18-206(b)(1)(A).
The
superintendent
Ark.
then
has
thirty days to notify the student’s parents by letter whether
the student has been accepted or rejected by the non-resident
district, in accordance with pre-established standards.
Code Ann. § 6-1-206(b)(1)(B), (b)(2)(A).
A rejected application
may be appealed to the Arkansas State Board of Education.
Code Ann. § 6-18-206(b)(2)(B).
Ark.
Ark.
The Department of Education is
charged with monitoring each school district’s compliance with
the Arkansas Public School Choice Act of 1989 and developing
rules and regulations for its proper implementation. Ark. Code
Ann.
§
6-18-206(f)(5)-(6).
The
Board
has
the
authority
to
resolve disputes that arise with respect to the Arkansas Public
School
Choice
Act
of
1989’s
implementation
and
enforcement.
Ark. Code Ann. § 6-18-206(g).
Fifteen years after the creation of the Arkansas Public
School Choice Act of 1989, the Legislature continued to wrestle
Page 9 of 32
with
meeting
education.
its
It
obligations
then
created
School Choice Act of 2004.
to
the
provide
Arkansas
adequate
Opportunity
Ark. Code Ann. § 6-18-22711.
wake of the recent Lake View12
public
Public
In the
litigation, the General Assembly
found that a student should not be compelled against the wishes
of
the
student,
underperforming
parent
or
school.
227(a)(2)(B)(iii).
The
guardian
Ark.
Arkansas
Code
to
remain
Ann.
Opportunity
in
an
§
6-18-
Public
School
Choice Act of 2004 allows students to transfer to a school that
has been designated by the State as a school performing higher
than that in which the student is currently enrolled or to which
the student has been assigned.
The Legislature went further in 2011, when the Arkansas
Opportunity Public School Choice Act of 2004 was amended to
specifically state that the race or ethnicity of a student shall
not be used to deny a student the ability to attend a school in
the
student’s
school
district
of
choice
Ark. Code Ann. § 6-18-227(d)(2)(B)13.
under
this
section.
Also amended at that time
was Ark. Code Ann. § 6-18-227(e), which originally read: ”The
provisions of this section (Ark. Code Ann. § 6-18-227) and all
student choice options created in this section are subject to
11
2003 Ark. Acts 35.
12
Lake View School District No. 25 v. Huckabee, 351 Ark. 31 (2002).
13
2011 Ark. Acts 1147.
Page 10 of 32
the
limitations
of
Ark.
Code
Ann.
§
6-18-206(d)-(f).”
The
section was amended to remove the obligation to comply with Ark.
Code
Ann.
§
provisions
6-18-206(f).
of
this
The
section
current
and
all
section
student
reads:
choice
“The
options
created in this section shall comply with Ark. Code Ann § 6-18206(d)14, (e)15, and (i)16 and shall not be subject to any other
limitation or restriction provided by law.
If any part of this
section conflicts with the provisions of a federal desegregation
court order applicable to a school district, the provisions of
the federal desegragation court order shall govern.”
Ark. Code
Ann. § 6-18-227(e)(1)-(2).
IV. Stipulated Facts
Plaintiffs
School
were
Choice.”
members
(Doc.
77,
of
¶
a
group
25).
called
The
“Parents
Teagues
and
for
Ms.
Richardson are residents of Hot Spring County, Arkansas (Malvern
School District), with minor children who attend Malvern School.
The
Drapers
and
Hardys
are
residents
of
Hot
Spring
County,
Arkansas, (Ouachita School District), with minor children who
attend Ouachita School District. (Doc. 77, ¶¶ 28, 29).
to
the
2010-2011
applications
to
school
transfer
year,
their
Plaintiffs
minor
children
filed
to
Prior
timely
Defendant
14
Ark. Code Ann. § 6-18-206(d) concerns course credits and graduation requirements.
15
Ark. Code Ann. § 6-18-206(e) directs that for purposes of determining a school district’s state equalization aid, the nonresident
student shall be counted as a part of the average daily membership of the district to which the student has transferred.
16
Ark. Code Ann. § 6-18-206(i) requires annual reports to the Equity Assistance Center.
Page 11 of 32
Magnet Cove School District pursuant to Ark. Code Ann. § 6-18206.
(Doc. 77, ¶¶ 30, 37, 40, 47).
transfer request.
white.
Magnet Cove denied each
The minor children of the Plaintiffs are
(Doc. 77, ¶ 54).
On June 30, 2010, Plaintiffs timely appealed Magnet Cove’s
decision to deny their applications for transfer to the State
Board of Education.
(Doc. 77, ¶ 60).
By findings of fact,
conclusions of law and order dated September 22, 2010, the ASBE
denied the Plaintiffs’ appeals17.
The ASBE’s decision contained
the following conclusions:
24. ARK. CODE ANN. § 6-18-206(a)(5) generally allows
any student in Arkansas to attend a school in a
district in which the student does not reside.
This
general
allowance
is
subject
to
the
following
provisions of ARK. CODE ANN. § 6-18-206(f):
(1) No student may transfer to a nonresident district
where the percentage of enrollment for the student’s
race exceeds that percentage in the student’s race
except in the circumstances set forth in subdivisions
(f)(2) and (3) of this section;
***
27. The school choice applications of ...Richardson
and [the Teagues] were properly denied by the Magnet
Cove School District pursuant to the provisions of
ARK. CODE ANN. § 6-18-206.
The State Board does not
have
the
authority
to
rule
an
Arkansas
law
unconstitutional.
ARK. CODE ANN. § 6-18-206 remains
in full force and effect and the State Board is bound
by its provisions.
Accordingly, the Richardson and
Teague petitions are hereby DENIED. (Doc. 77, Ex. No.
24).
17
Plaintiffs Teague and Richardson’s appeals were denied because the students were not eligible for transfer under Ark. Code
Ann. § 6-18-206(f). Plaintiffs Hardy and Drapers’ appeals were denied because they did not seek transfer from their resident
district (Ouachita School District) to the Magnet Cove School District. (Doc. 77, ¶¶ 47, 61). The Summary Judgment Motion is
brought on behalf of Plaintiffs Teague and Richardson. (Doc. 69).
Page 12 of 32
For
the
2010-2011
school
year,
the
percentage
of
white
students in the Magnet Cove School District (95.11%) exceeded
the percentage of white students in the Malvern School District
(60.06%).
Because the Teague and Richardson children are white,
they were not permitted to transfer to Magnet Cove under the
Arkansas Public School Choice Act of 1989.
(Doc. 77, Ex. No.
11).
VI.
The Parties’ Positions
Plaintiffs contend that while the Arkansas Public School
Choice
Act
of
1989,
Ark.
Code
Ann.
§
6-18-206,
provides
a
statutory right for students to transfer from one public school
district to another in the State of Arkansas,
Subsection (f)(1)
limits this statutory right based on the race of the student who
seeks to exercise it.
Plaintiffs argue that this facial race-
based limitation on the statutory right to transfer from one
school district to another is discrimination based on race by
the State of Arkansas, the ASBE and the school districts acting
under the Arkansas Public School Choice Act of 1989.
Plaintiffs
argue that Subsection (f)(1) of this statute clearly violates
the Equal Protection Clause of the 14th Amendment to the United
States Constitution.
(Doc. 70).
Page 13 of 32
State Defendants18 maintain that the Arkansas Public School
Choice Act does not confer upon students the right to transfer;
a student’s right is to an equitable education.
limitations
placed
segregative
effects
on
the
are
choice
not
transfer
caused
by
Because of the
laws,
the
any
alleged
State’s
laws.
Defendants argue that since the Arkansas Public School Choice
Act of 1989 is narrowly tailored to the specific conditions
sought to be remedied and the State provides other avenues for
transfers which do not relate to the race of the student, it
satisfies the Supreme Court’s test for constitutionality.
The
system is not only constitutionally permissible, they argue, but
may
also
be
required
by
the
involving the State of Arkansas.
desegregation
jurisprudence
(Doc. 72).
Intervenors Camden Fairview and El Dorado School Districts
and their respective board members contend that they are and
will continue to comply with the laws of the State of Arkansas
regarding the Arkansas Public School Choice Act of 1989.
The
Intervenors and Magnet Cove School District19 believe that Ark.
Code Ann. § 6-18-206(f) is a valid limitation enacted by the
18
In Hardy, we stated that the members of the Arkansas State Board of Education could not be sued in their official capacities
unless and until Plaintiffs pursued their right to appeal the denial of their transfer applications. The Plaintiffs have exhausted
their administrative remedies and the ASBE members directly charged with enforcing the Arkansas Public School Choice Act are
properly before the court.
19
In Hardy, the Plaintiffs sued their resident school district, Malvern School District. We granted Malvern’s motion to dismiss,
finding the constitutionality of Ark. Code Ann. § 6-18-202 was unchallenged and that the school district was entitled to enforce
the statute. The proper school district defendant is non-resident Magnet Cove, the district which enforced Ark. Code Ann. § 618-206 and denied Plaintiffs’ transfer requests. The Magnet Cove defendants adopt as their own the Motion for Summary
Judgment filed by the Intervenors. (Doc. 81).
Page 14 of 32
Arkansas
General
Assembly
as
an
integral
part
of
the
legislature’s attempt to allow school choice that would promote
educational excellence while at the same time being sensitive to
the need to eliminate the present effects of past intentional
discrimination
on
the
basis
of
race
in
delivery of public education in Arkansas.
the
structure
and
(Doc. 75).
The parties all agree the Court must determine whether Ark.
Code Ann. § 6-18-206(f) passes constitutional muster and, if
not, whether Subsection (f) is severable from the remainder of
the Arkansas Public School Choice Act of 1989.
V.
Analysis
Arkansas
relations
in
particular.
has
a
complicated
general,
and
history
equal
with
opportunity
regard
to
education
race
in
From resistance in the 1950s to minimum compliance
in the 1960s, some parts of the state have fought integration
even since the Brown v. Board of Education of Topeka20 decision.
This decision declared state laws establishing separate public
schools for black and white students unconstitutional, finding
that de jure racial segregation violated the Equal Protection
Clause.
347 U.S. 483 (1954).
Arkansas is home to both the
first public school in the former Confederate States of America
to
implement
racial
desegregation
(Charleston)
20
347 U.S. 483 (1954).
Page 15 of 32
and
the
high
school which drew the nation’s attention in 1957 when the state
National Guard was utilized to keep black students from entering
Central High School in Little Rock21.
21
After the first Brown decision in 1954, the Little Rock School Board issued a policy statement that it would
comply with the Supreme Court’s judgment to integrate public schools. The NAACP petitioned the Board for
immediate integration, and by 1955 the Board adopted the “Blossom Plan” (named after Superintendent of Schools
Virgil Blossom), which provided for gradual integration beginning in high schools starting in September, 1957 and
lower grades over the next six years. The gradual integration plan was upheld by federal court Judge John E. Miller
who found that the Board had acted in “utmost good faith” in setting up its plan. Aaron v. Cooper, 143 F. Supp. 855
(D.C. Ark. 1956). In April, 1957, the Eighth Circuit upheld Justice Miller’s decision. See Aaron v. Cooper, 243
F.2d 361 (8th Cir. 1957). On August 27, 1957, the segregationist Mother’s League of Central High School filed a
motion for a temporary injunction against integration at Central. Two days later, Pulaski Chancellor Murray Reed
granted the injunction, finding that integration could lead to violence. Federal Judge Ronald Davies reversed the
injunction and ordered the Board to proceed with its desegregation plan.
Under a federal court order to integrate, the Little Rock School District prepared to admit nine black students to
Central High School. The students, having attended all-black schools, volunteered to attend Central. On September
2, 1957, The Governor of Arkansas announced in a televised speech that he would use the Arkansas National Guard
to “prevent violence” and prohibit the students from entering Central. On September 4, the “Little Rock Nine” tried
to enter the school, but were turned away by the National Guard and denied entry for the next two weeks. The
Board requested a suspension of its desegregation plan, but Judge Davies denied the request. On September 20,
Judge Davies ruled that the governor had not used the Arkansas National Guard troops to preserve the law and
ordered their removal from Central. The troops were removed, leaving Little Rock police to maintain order as the
Nine finally entered Central High School on September 23. Following rioting by white parents and students outside
the school, the Nine were secreted out of the back of the school.
The next day, based on his promise to uphold the Constitution by every legal means at his command, President
Eisenhower ordered units of the U.S. Army’s 101st Airborne Division into Little Rock and federalized the Arkansas
National Guard. On September 25, under federal troop escort, the Little Rock Nine walked into the classrooms of
Central and completed their first day of school. The Airborne Division left Little Rock in October and the
federalized Arkansas National Guard troops stayed for the rest of the school year. On May 25, 1958, Ernest Green,
the only senior among the Little Rock Nine, became the first black graduate of Central High School. It did not end
there.
In the summer of 1958, Governor Faubus closed Little Rock’s four public high schools in order to prevent further
attempts at desegregation. The city was divided into camps supporting and condemning segregation, using political,
social and economic pressures to further the goals of each. On September 27, 1958, Little Rock’s citizens voted
almost three to one against integration, leaving the schools closed for the entire school year to their 3,600 students.
The Little Rock public high schools reopened on August 12, 1959, with limited desegregation. Integration involving
substantial numbers of students would not occur until the 1970’s. Historian Taylor Branch once described the
“Little Rock Crisis” as the most severe test of the Constitution since the Civil War. The crisis spawned countless
newspaper and magazine articles around the world and captured Americans’ attention through a powerful new
media tool: television.
The experiences of the Little Rock Nine have been chronicled in biographies,
autobiographies and documentaries and they are a critical part of the curriculum for Arkansas students of history. In
Page 16 of 32
In the follow-up decision to Brown, the Supreme Court held
that States and school districts have an affirmative duty to
eliminate
the
assignment
of
children
to
separate,
racially-
identifiable schools and must do so with all deliberate speed.
Brown v. Board of Education of Topeka, 349 U.S. 294, 299 (1955).
The question becomes, what are the limitations on a State’s
affirmative duty to purge our school systems of de jure and de
facto discrimination?
The parties agree that the Teague and Richardson’s children
were denied the opportunity to transfer from the Malvern School
District to the Magnet Cove School district solely on the basis
of their race.
(Doc. 77, ¶61).
The Arkansas Public School
Choice Act of 1989 as drafted by the Legislature on its face
separates schoolchildren by race, the sole determining factor in
their ability to transfer school districts under the Arkansas
Public School Choice Act of 1989.
prohibits
the
government
from
The Equal Protection Clause
discriminating
based
on
race
unless the specific discrimination is narrowly tailored to serve
a compelling government interest.
simply
too
pernicious
to
“[R]acial classifications are
permit
any
but
the
most
connection between justification and classification.”
exact
Parents
1999, President Bill Clinton presented the Little Rock Nine with the Congressional Gold Medal, the nation’s highest
civilian honor.
Little Rock Central High School National Historic Site, www.nps.gov/chsc, site last visited April 30, 2012.
Page 17 of 32
Involved in Community Schools v. Seattle School Dist. No. 1, 551
U.S. 701, 720 (2007), quoting Gratz v. Bollinger, 539 U.S. 244,
270 (2003).
As a race-based classification, the statute must be
evaluated under strict scrutiny.
One can assume that the limitation put forth in Ark. Code
Ann. § 6-18-206(f) was inserted in the Arkansas Public School
Choice Act of 1989 in response to and in light of this state’s
discrimination in its public K-12 educational programs, and with
the
primary
intention
of
complying
mandates in the Brown cases.
with
the
Supreme
Court’s
The Arkansas Public School Choice
Act of 1989 follows swiftly on the heels of decisions in both
the Eastern District of Arkansas and the Eighth Circuit which
held
that
a
student
transfer
law
that
does
not
potential segregative effects is unconstitutional.
control
for
Little Rock
School District v. Pulaski County Special School District No. 1,
et al., 584 F.Supp. 328 (E.D. Ark. 1984); 597 F.Supp. 1220 (E.D.
Ark. 1984); 778 F.2d 404 (8th Cir. 1985)(en banc).
As a result
of a comprehensive series of settlement agreements reached in
1988 and 1989 and adopted by consent decrees, the State remains
obligated to this day to fund the Little Rock and Pulaski County
School
Districts’
plans
to
remedy
segregation
violations.
Little Rock School Dist. v. Arkansas, 664 F.3d 738 (8th Cir.
2011).
a.
Compelling Interest
Page 18 of 32
As
for
difficult
stake.
the
to
The
constitutionality
argue
that
Plaintiffs’
images of one another.
there
and
is
of
the
no
compelling
Defendants’
limitation,
it
is
interest
at
motions
are
mirror
Agreeing to stipulated facts and relying
on the same Supreme Court precedent, the parties advocate for
different legal conclusions.
The parties disagree particularly
with respect to the applicability and impact of the Supreme
Court’s Decision in Parents Involved in Community Schools v.
Seattle School District No. 1 et al., 551 U.S. 701 (2007). In
Parents Involved, the Supreme Court considered voluntary efforts
by
school
County,
schools.
districts
Kentucky,
to
in
Seattle,
achieve
more
Washington,
racially
and
Jefferson
integrated
public
In a 5-4 vote, the Court found both pupil assignment
plans violated the Equal Protection Clause.
Although
Seattle
was
never
under
a
court-ordered
desegregation plan, its school board adopted mandatory busing in
1978 as part of a settlement with the NAACP.
In the late 1980s
that plan was replaced with one that allowed students to choose
schools subject to certain race-based constraints.
In 1999, the
plan classified students as either “white” or “nonwhite” and
used that classification as a tie-breaker when too many students
chose a particular school if that school had a ratio of white to
nonwhite students that was outside of a certain range centered
on the district’s overall ratio.
Page 19 of 32
Parents
Involved
in
Community
Schools,
a
nonprofit
organization of parents whose children were or could be in the
future
assigned
under
Western
District
of
summary
judgment
to
assignment
strict
plan
scrutiny
the
Seattle
Washington.
was
the
The
school
consistent
under
the
plan,
filed
district
district,
with
state
Fourteenth
suit
court
finding
law
in
and
the
awarded
that
the
survived
Amendment’s
Equal
Protection Clause. Parents Involved in Cmty. Sch. V. Seattle
Sch. Dist. No. 1, 137 F.Supp.2d 1224 (W.D. Wash. 2001).
of
the
Ninth
Circuit
reversed
on
the
federal
A panel
constitutional
questions, holding that although attaining racial diversity and
avoiding racial isolation are compelling interests, the plan was
not
narrowly
tailored
to
achieve
those
interests.
Parents
Involved in Cmty Sch. V. Seattle Sch. Dist. No. 1, 377 F.3d 949
(9th Cir. 2004).
The Ninth Circuit granted rehearing en banc,
and overruled the panel, upholding the plan.
Parents Involved
in Cmty. Sch. V. Seattle Sch. Dist. No. 1, 426 F.3d 1162 (9th
Cir. 2005)(en banc).
Jefferson
County,
on
the
other
hand,
had
been
under
a
court-imposed desegregation order since 1975, but it had been
declared
unitary
in
2001.
After
the
dissolution
of
the
desegregation order, the school board adopted a school choice
plan which allowed students to choose from schools near their
homes subject to the receiving school’s capacity, as long as
Page 20 of 32
such assignment would not cause the school’s percentage of black
students to fall below 15% or rise above 50%. The mother of a
Jefferson
County
student
whose
transfer
request
was
denied
because of the racial distribution requirement filed suit in the
Western District of Kentucky.
The district court held that the
Jefferson County plan was narrowly tailored to its compelling
interest in maintaining racially diverse schools.
Jefferson
2004).
County
Public
Sch.,
330
F.
Supp.2d
McFarland v.
834
(W.D.
Ky.
In a one sentence, per curiam opinion, the Sixth Circuit
affirmed the judgment of the district court.
McFarland ex rel.
McFarland v. Jefferson County Public Sch., 416 F.3d 513 (6th
Cir. 2005)(per curiam).
In a consolidated opinion, the Supreme Court struck down
both the Seattle and Jefferson County plans.
In the parts of
his opinion that were supported by the majority of the Court,
Chief Justice Roberts reasoned that since the plans of Seattle
and Jefferson County involved racial classifications, they were
in violation of the Equal Protection Clause unless they were
narrowly tailored to achieve a compelling government interest.
The
Chief
determined
Justice
that
the
reviewed
Court
Supreme
had
Court
acknowledged
interests in the context of public schools:
precedent
two
and
compelling
The first is the
compelling interest in remedying the effects of past intentional
discrimination.
Parents
Involved,
551
Page 21 of 32
U.S.
at
720,
citing
Freeman
v.
Pitts,
503
U.S.
476,
494
(1992).
The
second
compelling government interest identified by the Supreme Court
is
the
interest
in
diversity
in
higher
education
Grutter v. Bollinger, 539 U.S. 306, 328 (2003).
was
expressly
limited
to
higher
education,
upheld
in
Because Grutter
we
find,
as
the
Supreme Court did in Parents Involved, that Grutter does not
govern the present case.
The
underlying
551 U.S. at 725.
legal
question
in
Parents
Involved
was
whether a public school that had not operated legally segregated
schools or had been found to be unitary may choose to classify
students by race and rely upon that classification in making
school assignments.
Parents Involved, 551 U.S. at 711.
Based
on that statement alone it could be argued (and Defendants so
contend) that Parents Involved has no applicability to the case
at bar.
The parties do not contest that Arkansas operated a
dual school system that was not meaningfully segregated until
the 1970s.
The parties produce no evidence that either the
Malvern or Magnet Cove School Districts are or were in the past
subject to a desegregation-related court order.
However, it may
be virtually impossible to determine how many school districts
in the State are operating at present under desegregation plans
or orders.
(Doc. 72, p. 17).
Department
of
Education
A letter from the United States
Office
for
Civil
Rights,
Southern
Division, dated September 2, 2005, does not identify Malvern
Page 22 of 32
School District as operating under a Department or court-ordered
desegregation plan.
(Doc. 77,
Ex. 53).
Likewise a letter from
the United States Commission on Civil Rights, Central Regional
Office, dated October 30, 2006, does not identify Malvern as a
school district which has been granted “unitary status” by a
court.
(Doc. 77, Ex. 52).
The parties have identified no
history of past intentional discrimination with respect to the
Magnet Cove School District.
The Supreme Court has emphasized that “the Constitution
is not violated by racial imbalance in the schools, without
more.”
Parents Involved at 721, quoting Milliken v. Bradley,
433 U.S. 267, 280 (1977).
Having identified the two compelling
interests, the Supreme Court ultimately did not decide whether
there was a compelling interest in the Washington and Kentucky
cases; we likewise cannot find that the State’s well-intentioned
effort to avoid racial imbalance in public schools is not in
pursuit of a compelling interest.
Nonetheless, as in Parents
Involved, the Arkansas Public School Choice Act of 1989 fails
the second test of constitutionally because it is not narrowly
tailored.
b.
Narrowly Tailored
Defendants
contend
that
the
manner
in
which
they
have
employed racial classifications is necessary to achieve their
stated ends.
The limitation expressed in Ark. Code Ann. § 6-18Page 23 of 32
206(f) applies state-wide without regard to whether a resident
or non-resident school district has a history of de jure or de
facto segregation.
The blanket rule on inter-district transfers
based solely on percentages of minority students in a school
district directly contradicts the Legislature’s stated goal of
permitting students to choose from among different schools with
differing assets that meet their individual needs.
Ann. § 6-18-206(a)(2).
Ark. Code
As in Parents Involved, the plan in both
design and operation of the Arkansas Public School Choice Act of
1989 is directed only to racial balance.
The
Department
of
Education
551 U.S. at 726.
created
rules
governing
the
guidelines, procedures and enforcement of the Arkansas Public
School Choice Act of 1989.
(Doc. 77, Ex. 12).
Rule 8.01
provides that no student may transfer to a non-resident district
where
the
exceeds
percentage
that
of
percentage
enrollment
in
the
for
the
student’s
student’s
resident
race
district.
Rule 8.02 provides that the Department shall each year compute
the minority/majority racial percentage(s) of the public school
population for each county based on the October Annual School
Report.
or
School districts may vary in the under-representation
over-representation
maximum
of
percentages
25%
for
of
the
of
the
county
minority/majority
difference
as
in
determined
students
by
a
majority/minority
by
the
Department.
Here, as in Parents United, the “racial balance the districts
Page 24 of 32
seek
is
a
defined
range
set
solely
by
reference
demographics of the respective school districts.”
to
551 U.S.
the
at
729.
To meet the definition of narrowly tailored, a schoolchoice plan must allow for an individualized review of each
student to determine if his or her transfer would contribute to
the overall goal of the district. A decision to deny transfer
cannot
be
based
solely
on
a
student’s
race
and
must
have
consideration of their individual circumstances, otherwise the
plan is unconstitutional.
The
Arkansas
Department
of
Education
participation in choice transfers.
tracks
student
The numbers kept by the
department are not limited to transfers under Ark. Code Ann.
§ 6-18-206, but include students enrolled in a district under
any transfer law.
The numbers provided with the Affidavit of
James Boardman show the number of students (by race) enrolled in
school districts under the choice options.
(Doc. 77, Ex. 34).
For the entire state of Arkansas in the 2010-2011 school year,
15,682 students were enrolled in receiving districts under some
form of choice transfer.
(Ex. 43, Table 3).
This represents
3.35% of the total elementary and secondary student body in the
State.
Of those participating in some form of choice transfer
in
2010-2011
the
school
year,
75.97%
(11,913
students)
white students and 17.18% (2,694 students) were black.
Page 25 of 32
were
For
comparison,
there
were
468,066
students
funded education in the State.
enrolled
in
publicly
Roughly two-thirds (65.03% or
304,373 students) in the public schools in the State in 20102011 were white and 21.34% (99,862 students) were black.
These
numbers,
according
white
students
are
to
Defendants,
participating
in
demonstrate
choice
that
transfers
at
a
significantly greater rate than their black peers. (Doc. 72).
The Intervenors submit the letter of Dr. Jerry D. Guess,
Superintendent of the Pulaski County Special School District,
which states that removing residence and race restrictions would
rapidly result in many counties in Arkansas having a racially
segregated public school system as white students “choice out”
to “whiter” schools.
(Doc. 77, Ex. 58).
Robert Watson, Superintendent of El Dorado School District,
concludes that race trumps all other considerations, including
quality of education, in his county among most white parents
selecting
a
school
district
for
their
child
to
attend.
He
speculates that if the Arkansas Public School Choice Act of 1989
had not included a racial restriction, El Dorado would have very
quickly lost its white students and become an overwhelmingly
black school district.
(Doc. 77, Ex. 59).
This fear of “white flight” does not, in and of itself,
justify the overbroad restrictions on school transfer.
“Those
entrusted with directing our public schools can bring to bear
Page 26 of 32
the creativity of experts, parents, administrators, and other
concerned
citizens
to
find
a
way
to
achieve
the
compelling
interest they face without resorting to widespread governmental
allocation
of
benefits
classifications.”
and
burdens
Parents
of
the
Involved,
basis
551
of
U.S.
racial
at
798
(2007)(Kennedy, J., concurring).
One cannot view the Arkansas Public School Choice Act of
1989 in a vacuum.
When it is studied as part of the larger body
of legislation governing school attendance and assignment, it is
clear that the Legislature has not only considered but enacted
other methods of achieving its goals.
other
enrollment/transfer
As discussed earlier, the
statutes
already
provide
for
exceptions when the resident or receiving school districts are
or have been under a desegregation-related court order and the
transfer in question would negatively affect the racial balance
of the district.
Finally,
See Ark. Code Ann. § 6-18-203(5), § 6-18-317.
some
of
the
state’s
lawmakers
themselves
have
determined that the limitation in Ark. Code Ann. § 6-18-206(f)
may not pass the strict scrutiny test.
recent
amendment
to
the
Arkansas
This is evidenced by a
Opportunity
Public
School
Choice Act of 1989 deleting the requirement of the race-based
restriction
schools.
with
regard
to
transferring
Ark. Code Ann. § 6-18-227 (d)(2)(B).
Page 27 of 32
away
from
failing
The
State
must
employ
a
more
nuanced,
individualized
evaluation of school and student needs, which, while they may
include
race
as
one
component,
may
not
base
enrollment
or
transfer options solely on race. Accordingly, the Court finds
that
Ark.
Protection
Code
Ann.
Clause
of
§
6-18-206(f)(1)
the
Fourteenth
violates
Amendment
to
the
Equal
the
United
States Constitution and hereby permanently enjoins the State of
Arkansas from applying Subsection § 6-18-206(f)(1) to transfer
applications
1989.
not
under
the
Arkansas
Public
School
Choice
Act
of
But for the fact that the unconstitutional provision is
severable
from
the
remainder
of
the
statute
(discussed
infra), the Court would order Defendants to permit the transfer
of the Teague and Richardson children to the Magnet Cove School
District.
VI.
Severability
In light of the court’s finding that Ark. Code Ann. § 6-18-
206(f)
is
unconstitutional,
the
Court
next
has
to
address
whether that subsection is severable from the Arkansas Public
School Choice Act of 1989.
If Ark. Code Ann. § 6-18-206(f) is
found to be non-severable, the Arkansas Public School Choice Act
of 1989 cannot survive Plaintiffs’ challenges.
The Camden and
El Dorado School Districts contend that Subsection Ark. Code
Ann. § 6-18-206(f) is not severable from the remainder of the
Arkansas Public School Choice Act of 1989 and that as a result,
Page 28 of 32
the Court must strike the entire Arkansas Public School Choice
Act of 1989 due to the constitutional defect in subdivisions
(f)(1)-(4).
“Severability
is
a
matter
of
state
law.”
Burris, 146 F.3d 563, 573 (8th Cir. 1998).
Russell
v.
“An act may be
unconstitutional in part and yet be valid as to the remainder.”
Ex Parte Levy, 204 Ark 657 (1942).
“In determining whether the
invalidity of part of an act is fatal to the entire legislation,
this court looks to “(1) whether a single purpose is meant to be
accomplished by the act, and (2) whether the sections of the act
are interrelated and dependent upon each other.”
City of North
Little Rock v. Pulaski County, 332 Ark. 578, 584 (1998).
portions
of
an
act
are
mutually
severance is not appropriate.”
v.
Hill,
316
Ark.
251,
connected
and
“When
interwoven,
U.S. Term Limits, Inc., et al.
268
(1995).
“If,
when
the
unconstitutional portion is stricken out, that which remains is
complete in itself, and capable of being executed in accordance
with the apparent legislative intent, wholly independent of that
which was rejected, it must be sustained.”
Faubus v. Kinney,
239 Ark. 443, 447 (1965)(quoting Ex Parte Levy, 204 Ark. 657
(1942)).
The Arkansas Public School Choice Act of 1989 makes clear
that
the
Arkansas
General
Assembly’s
intent
in
passing
the
Arkansas Public School Choice Act of 1989 was to permit student
Page 29 of 32
transfer in order to provide choices for parents and students
and
to
foster
better
school
performance--as
long
as
those
transfers do not adversely affect the desegregation of either
district. Ark. Code Ann. § 6-18-206(a)(3)-(4).
Ark.
Code
Assembly,
Ann.
§
6-18-206(f)
seriously
considered
demonstrates
the
The presence of
that
prospect
the
that
General
unlimited
choice would defeat integration and create liability on the part
of the state.
Ark. Code Ann. § 6-18-206(f) was implemented in
order to prevent adverse effect on the efforts of desegregation,
and may be construed as the Assembly’s attempt to balance its
efforts
to
serve
the
interest
of
students’
choice
and
desegregation.
Severing Ark. Code Ann. § 6-18-206(f) from the remainder of
the Public School Choice Act of 1989 would undermine the intent
of the General Assembly.
Removing Ark. Code Ann. § 6-18-206(f)
would leave uneffectuated the legislature’s express statement
that inter-district transfer is permissible “provided that the
transfer
by
this
student
would
desegregation of either district.”
(a)(4).
render
not
adversely
affect
the
Ark. Code Ann. § 6-18-206
Further, severing Ark. Code Ann. § 6-18-206(f) would
the
Arkansas
Public
School
Choice
Act
of
1989’s
constraint on the ability of students to pursue inter-district
transfer without any limiting authority.
The General Assembly
sought to provide students with a choice of their school with an
Page 30 of 32
express
limitation
desegregation.
Arkansas
would
School
Choice
undermine
the
implemented to serve.
206(f)
is
it
did
not
adversely
affect
Ark. Code Ann. § 6-18-206(f) functions as the
Public
removal
that
connected
Act’s
limiting
balancing
act
agent
and
its
which
it
was
Accordingly, Ark. Code Ann. § 6-18and
interwoven
with
the
Arkansas
Public
School Choice Act of 1989, and therefore, cannot be severed and
Ark. Code Ann. § 6-18-206 is unconstitutional in its entirety.
V.
Conclusion
Ark.
Code
Protection
States
Clause
Ann.
of
Constitution,
Arkansas
Public
§
6-18-206(f)(1)
the
and
School
Fourteenth
that
Choice
it
Act
violates
Amendment
is
of
not
to
the
Equal
the
United
severable
1989.
The
from
the
State
of
Arkansas is enjoined from applying the Arkansas Public School
Choice Act of 1989.
Plaintiff’s Motion for Declaratory and
Injunctive Relief (Doc. 69) is GRANTED as to the declaration of
unconstitutionality of the Arkansas Public School Choice Act of
1989
and
DENIED
as
to
the
injunctive
relief
sought
by
Plaintiffs.
Defendants’ Motion for Summary Judgment (Doc. 71)
is DENIED.
Intervenors’ Motion for Summary Judgment (Doc. 74)
is DENIED.
Page 31 of 32
The Court fully expects this case to be appealed in view of
the important issues presented in this case.
IT IS SO ORDERED this 8th day of June, 2012.
/s/ Robert T. Dawson________
Honorable Robert T. Dawson
United States District Judge
Page 32 of 32
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