Attorney argues against hearing

LITTLE ROCK — An attorney for four south Arkansas school districts said this week that it would be inappropriate for the full 8th U.S. Circuit Court of Appeals to hear arguments in a School Choice Act case previously decided by a three-judge panel of the court.

In response to the state of Arkansas’ request last month for a hearing by the full court, attorney Whitney Moore said a full hearing was not warranted and should be denied because the state did not “raise any questions of exceptional importance,” nor do the decisions in the case conflict with U.S. Supreme Court precedent.

Moore, of the Allen P. Roberts law firm in Camden, is an attorney for the Hope, Junction City, Lafayette County and Camden Fairview school districts, which challenged the state’s directives that they participate in Arkansas’ School Choice Act interdistrict student transfers.

The districts argued first to the Arkansas Department of Education and the state Board of Education and then to the U.S. district and appellate courts that the student transfer program would create “white flight” from the districts and put them in violation of their decades-old federal court desegregation orders or consent decrees.

Arkansas’ School Choice Act enables students to attend schools in districts in which they do not reside. The initial 1989 law included provisions meant to promote racial desegregation of students. The law was altered over time to take out the race provisions unless a district can submit proof of a desegregation plan or order that “explicitly limits” interdistrict transfers.

U.S. District Judge Susan O. Hickey in January 2019 approved modifying the terms of the four districts’ desegregation orders and/or decrees to prohibit segregative interdistrict transfers of students. The judge did allow for transfers for educational or compassionate purposes, which are to be decided on a case-by-case basis by a school board.

Hickey concluded that the changes in the state law were significant. She also concluded that the districts’ consent decrees were intended to prohibit any racial discrimination from occurring, including racial segregation as the result of student transfers.

A panel of the 8th Circuit Court last December ruled 2-1 to affirm Hickey’s orders, prompting the Arkansas attorney general’s office — on behalf of state education leaders — to seek a hearing of the case by the full 8th Circuit Court.

The Arkansas Learns organization that advocates for school choice for parents has filed a friend-of-the- court brief in support of an en banc hearing.

The U.S. Department of Justice, a party in the original desegregation case involving the Junction City School District, has been given until March 19 to weigh in on the request for the full court hearing.

Moore, the attorney for the four districts, told the court that contrary to the arguments of the state, Hickey’s orders do not constitute converting desegregation cases involving single districts into broader interdistrict remedies.

“The fact that Arkansas has adopted an interdistrict school choice program as a privilege extended to parents and students does not transform exemptions from participation in that policy into interdistrict remedies,” Moore wrote. “The District Court did not require the Districts to pursue racial balancing. It simply acknowledged extensive evidence that choice transfers would have a segregative effect on the Districts and allowed them to obtain the exemptions to which they are entitled.”

Moore told the appeals court that “it would be a grievous wrong to force the Districts to participate in a choice program that negates their obligation to prohibit all forms of racial segregation.

“The Arkansas General Assembly has made it state policy that choice should not violate valid federal court orders. The plaintiffs and Districts simply seek to honor that pledge,” she said.