Parents lose school- choice suit’s appeal

OK for Blytheville district to opt out of law, court says

The 8th U. S. Circuit Court of Appeals on Monday upheld the Blytheville School District’s decision to opt out of the state’s Public School Choice Act.

The case stems from 10 parents who have children residing within the Blytheville School District’s boundaries. The parents had asked to transfer their children from that school district to neighboring ones for the 2013- 14 school year, but the Blytheville School Board said in a resolution that it was exempt from the student- transfer program because of desegregation obligations.

The Arkansas Public School Choice Act of 2013 law allows students to transfer to other school districts in which they do not reside. It also lets school districts opt out from participating in the student- transfer program if the program conflicts with a federal court desegregation order or a federal court- approved desegregation plan.

The appeals court’s majority opinion, which said the parents could not prove their constitutional rights were violated, put a stop to the case. But the parents could still have another shot.

One of the three appeals judges — C. Arlen Beam of Lincoln, Neb. — concurred in part and dissented in part. Beam disagreed with the other two judges and said the parents had established that their constitutional rights were violated.

The parents have 14 days to ask for a rehearing, said the parents’ attorney, Jess Askew III.

“Our clients think these are exceptionally important issues for children in Blytheville and across the state,” he said. “They are reviewing all of their options, including whether to ask the entire court to review in the case in view of the split decision.”

The lawsuit dates back to May 2013, when the parents first contended the Blytheville School Board’s call to exempt the district from participating in school choice violated their constitutional rights. Specifically, the parents claimed violations of due process and equal protection rights,

along with violations of the state’s Civil Rights Act.

They had also asked for U. S. District Judge Kristine Baker to issue a judgment on the case and a preliminary injunction that would have forced the school district to rescind its exemption. The district court denied the preliminary injunction, and the parents appealed.

In August 2014, a panel of the 8th U. S. Circuit Court of Appeals in St. Louis dismissed the appeal, calling it “moot.” At the time, the judges said the school year was already over and “nowhere in their motions do the appellants ask the court to enjoin the district from passing further resolutions opting out of the 2013 Act.”

Before the appeals court took up the rest of the matters, the Arkansas Legislature passed Act 560 of 2015, amending the previous school choice law. Under the amendment, districts claiming exemptions from the school choice law have to immediately submit proof to the Arkansas Department of Education of a “genuine conflict” from a federal court.

The amendment also struck out a clause in the law that was at issue in the parents’ appeal, the opinion states.

“Given that the Arkansas General Assembly has amended the 2013 Act, striking 6- 181906( b), and that the District has claimed an exemption under the newly added 6- 13113, the appellants’ request for declaratory and injunctive relief as it pertains to the 2013 Act is moot,” Judge Lavenski R. Smith of Little Rock wrote in the opinion.

Smith said the parents did not have a protected liberty interest because they “have freely chosen” to send their children to public school. The school district did not restrict the parents’ constitutional rights to educational choice, Smith added.

Their property interest also failed, Smith said, because the school choice law provides students the possibility of transferring to another district — not a guarantee or absolute right. But Beam disagreed. “I respectfully dissent on the issue of the appellants’ damages arising from their procedural due process and equal protection claims and would remand the issues back to the district court to determine monetary damages, costs, and fees,” Beam wrote.

Beam said that Blytheville’s desegregation case closed in December 1978. The judge presiding over the case issued an order fully dismissing the case, which Beam said leaves no doubt that it was closed. He added that at the time, there was no requirement that the judge found the district in unitary status to close a desegregation order.

Last month, the Arkansas Board of Education denied appeals from families seeking to transfer their children out of the Blytheville district. Arkansas Education Commissioner Johnny Key said at the time that the state Education Department would routinely monitor districts for their efforts to achieve unitary status from federal courts. The Education Department did not return a call or email late Monday.

Tripp Walter, staff attorney at the Arkansas Public School Resource Center, said Monday afternoon that he could not comment because he hadn’t had a chance to read the appeals court opinion.

Gary Newton, president of Arkansas Learns — a nonprofit organization in Little Rock focused on education changes — said he had not read the court’s opinion but heard of the ruling. The group had high hopes for Blytheville, he said.

Blytheville is one of 18 school districts that have opted out of school choice, he said. There are 232 school districts in the state.

“Seven in Garland County have a federal judge that says, ‘ You cannot participate,’” Newton said. “Federal law always trumps. That’s understandable, but it’s those districts that are using dated court cases that have nothing to do with presentday circumstances.”

The hope comes from Act 560, the school- choice law amendment, he said. A recent attorney general’s nonbinding opinion, though, says that that law doesn’t call for the state Education Department to verify the proof or give guidance on what would constitute “genuine conflict” from a federal court.

“There’s got to [ be] a rule or law, a way to tighten that up so that the best interests of students are served, instead of the interests of the district,” Newton said. “Our hearts go out to those parents that have fought this fight and now have this result. But our hope remains in our ability to tighten this [ law] so that all districts can fully participate.”