Advocates of unfettered school transfers suffered another court loss this week.

The U.S. 8th Circuit Court of Appeals in St. Louis ruled in an opinion to be released this morning that changes in the Arkansas “school choice” law do not warrant termination of the agreement by which the Garland County school desegregation case had been settled in 1992.

Cutter Morning Star School District, Fountain Lake School District, Jessieville School District, Lake Hamilton School District and Mountain Pine School District had sought a different outcome so that, among others, students in the Hot Springs School District could freely transfer into those nearby districts. They were represented by Jess Askew of Little Rock, regularly a lawyer for the broad menu of “school choice” efforts — charter schools, voucher programs, school transfer — being pushed by the significant spending of the Walton Family Foundation.

The 8th Circuit decision upholds a district court ruling by Judge Robert Dawson. The 1992 desegregation settlement included an agreement to follow state school transfer law, which then included race-based limitations on transfers. It was intended to prevent transfers that contributed to segregation — whites moving from heavily minority districts being the most familiar example.


Supporters of unlimited school transfers sued over the state law and won a district court ruling that the racial bar was too general.  But that case became moot when the state law was amended to open the door to school transfers, without regard to race. There was an exception for districts with an “enforceable judicial decree or court order remedying the effects of past racial segregation in the school district.” There were 23 districts then in that position.

Originally, all the districts in Garland County said the agreement applied. But a group of them, not including Hot Springs, changed position and said the agreement should be terminated. They argued that the agreement had the effect on occasion of preventing transfers sought by black students.


The 8th Circuit concluded that the districts had not demonstrated full compliance with the 1992 agreement. It also said the districts had not shown that the change in state law alone was enough to require termination of the desegregation agreement.

The court wrote:

While “[a] consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law,” there has been no ruling that the 1989 Act is unconstitutional as incorporated into a judicial decree remedying the effects of past discrimination, and the school districts have not demonstrated why the reasoning that drove the district court’s decision in Teague would render it impermissible for individual school districts to implement in the context of a consent decree the practices outlined by the 1989 Act. To the contrary, Teague’s
finding that the 1989 Act was unconstitutional rested on the fact that “[t]he limitation expressed in Ark. Code Ann. § 6-18-206(f) [the race-based transfer limitation] applie[d] state-wide without regard to whether a resident or non-resident school district ha[d] a history of de jure or de facto segregation.”

Second, even assuming a relevant change in the law, the school districts—who asked for full termination of the Agreement—must show that the purported change affects the entire Agreement. In Smith, on which the school districts primarily rely, “the [district] court’s finding ‘that the defendants [had] complied in good faith with the remainder of the requirements set forth in the consent decree’” was relevant both to whether there was a “sufficient basis for the court to conclude that the District had demonstrated the requisite ‘significant change of circumstances,’” and to whether the
modification effectively terminated the entire decree. Some
provisions of the decree were effectively terminated by the court’s order granting the school district’s Rule 60(b)(5) motion, yet other provisions remained unaffected. Since extending the school district’s motion to terminate those other provisions would be “supported by nothing more than the notion they are ‘no longer convenient to live with’” we were confident that “the district court did not intend that its order terminate the entire consent decree.”

You can hear the oral arguments here.

So it appears that schools operating under past desegregation orders can still claim exemption from the school choice law. The state Board of Education has indicated, however, that it intends to make all of the  districts that have asserted court histories to exempt from school transfers to prove that they are in active court cases. The new Jacksonville-North Pulaski School District recently did just that. But, among others, the state Board of Education has approved a white-flight student transfer in El Dorado, despite that school district’s objection. It’s not yet clear if El Dorado will challenge that transfer by going back to federal court.


It is significant, if unsurprising, to note that the state threw in with Askew in trying to knock down this barrier to school transfer, regardless of what impact it might have on the Hot Springs School District. That is the controlling movement in Arkansas politics today. But that movement is also building a trove of circumstantial evidence of the state moving back to the separate and unequal days of 1954 in education, a case being developed in state Rep. John Walker’s broad attack on state education policy in his lawsuit over the state takeover of the Little Rock School District. The lead lawyer against the state in this case was Allen Roberts of Camden, regularly excoriated by the Walton Foundation’s paid lobbyist, Gary Newton, for his role in resisting open transfer in districts under desegregation orders. He’s represented, among others, the Pulaski County School District, which also claims the exemption from school transfer law because it remains in an active desegregation case.