Questioning from a federal appellate judge yesterday indicated that court protection against racial segregation of schools may be nearing its end.

The Arkansas Democrat-Gazette reported this morning on the state of Arkansas’s appeal of a district court decision that prevents the state from forcing four South Arkansas school districts from allowing transfers out of their district no matter the reason.

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Hope, Camden Fairview, Lafayette County and Junction City, operating under federal court desegregation orders, have opted out of the mandatory state school transfer law because it is used so often by white parents seeking to move to districts with smaller black populations. The districts allow transfers for valid compassionate and educational reasons, but insist that parents make a case.

Related read: The roots of Little Rock’s segregated neighborhoods

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In oral arguments before the 8th U.S. Circuit Court of Appeals, the districts got extensive questioning from Judge Jonathan Kobes, on a panel from a court already one of the most conservative in the country. What’s unconstitutional about white flight, he asked. And wouldn’t a transfer law that caps transfers at 3 percent of a district’s population annually have “de minimus” effect? Whitney Moore, attorney for the school districts, said she knew of no court precedent that supported just a little bit of discrimination. Also there’s arithmetic: 3 percent a year of a smaller percentage population has a dramatic impact on resegregation in a short period of time.

White flight IS constitutional of course. Parents may move to another school district that suits their racial, economic, football or other preference. But if the state actively encourages segregation by allowing people to live in one school district while taking their state money and children to another to avoid black people?  Well, there was a time the courts didn’t countenance such a state thumb on the scale. (Indeed there are a couple of 8th Circuit decisions on using white flight as a factor to consider in desegregation cases.) But that day is apparently near an end, encouraged by other court decisions in Arkansas pushed by the wealthy who have a much broader “school choice” agenda aimed at upending the conventional public school system.

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The law and policy of Arkansas today is to encourage segregation, whether by virtually unlimited transfers from public schools, by tax money for privately operated unregulated charter schools and by growing voucher programs. They call it “freedom of choice,” just as segregationists like George Wallace and Lester Maddox did back in the 1960s. In those days, federal courts took a dimmer view of state support of “separate but equal” education. Courts recognized that separate could not be equal. That time is fading, particularly with Donald Trump judicial appointments.

Case in point: Jonathan Kobes. He’s one of the slew of bad Trump apples fast-tracked to bench seats, with youth and ideology key quallifyiers. His background might have been of interest in today’s story given his prominence in the oral arguent. He’s one of many conservative foot soldiers Trump has appointed to produce intervention in civil rights just like this. Also useful: opposing abortion, favoring guns and discriminating against gay people.

Kobes was rated unqualified by the American Bar Association, as detailed here by the Leadership Conference on Civil and Human Rights. He had little experience beyond serving as an aide for Sen. Mike Rounds, a South Dakota Republican. In the link, you can see Kobes checks all the ideological boxes, plus Federalist Society membership Kobes has the distinction of being the first judge ever confirmed by a tie-breaking vote by a vice president. He was the fourth ABA “unqualified” nominee to be confirmed by the Senate. There have since been more and we’ve undoubtedly not seen the end of them.

I’m guessing he’ll produce an opinion that will meet with the approval of resegregating Arkansas, including Attorney General Leslie Rutledge and Gov. Asa Faubus, er, Hutchinson. For more on that subject, stay tuned for today’s Faubus-controlled state Board of Education as it further beats up on the majority-black Little Rock School District.

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