In a 2-1 decision today, the 8th U.S. Circuit Court of Appeals upheld federal Judge Susan Hickey’s order that four South Arkansas school districts could not be compelled to approve interdistrict student transfers because they operate under desegregation rulings.

The state has gradually made school district transfers all but automatic and has eliminated segregation impact as a reason to deny transfers unless a district is under a federal court order. The state Board of Education went to court to force Hope, Lafayette County, Camden Fairview and Junction City districts to allow interdistrict transfers. They are among a handful of districts still operating under past desegregation rulings, but the state argued their orders didn’t specifically prohibit transfers and said it would allow them. The districts went back to court for protection from forced transfers, which statewide have been sought mainly by white families moving students to districts with smaller minority enrollments.

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The state was refused in its effort to have Hickey’s order stayed this school year, so those districts continue to deny transfers. About 60 students had sought transfers this year.

The state has 45 days to ask for a review of the decision by the entire 8th Circuit. I’m seeking comment from the attorney general’s office. I’ve also asked for comment from state Education Secretary Johnny Key, whose department reviews school transfer appeals.

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UPDATE from attorney general’s office:

The Attorney General is disappointed by today’s panel decision.  We are reviewing the decision to determine the next step in this litigation.

Alan Roberts and Whitney Moore, the lawyers in the Camden firm that represented the four districts, were naturally pleased with the outcome. Said Moore:

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We’re pleased with today’s decision, and we believe the Court reached the right result. The majority correctly found that these cases are not about achieving racial “balance” between school districts, but instead are about preventing further re-segregation between school districts that are racially identified as “black” districts or “white” districts despite the fact that they are separated geographically by only a few miles. Today’s decision is progress toward eliminating the application of racial identifiers to public schools.

Here’s the opinion, by Judge Ralph Erickson. 

He was joined by Judge Michael Melloy. Judge Jonathan Kobes dissented.

The state argued that Judge Hickey’s modification of an earlier consent decree on desegregation was improper. Erickson’s opinion said:

Because there was a substantial change in Arkansas law after the consent decrees were enacted and the district court’s modification was not an impermissible interdistrict remedy, we affirm.

Erickson said consent decrees may be changed for “significant changes” in circumstances and events in Arkansas met that definition.

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The consent decrees dated back to the 1970s in Junction City and the 1990s in the other districts. A change in Arkansas law in 2013 opened up school transfers and ended a specific prohibition on transfers that contributed to segregation. Judge Hickey modified the earlier orders to specifically prohibit transfers for racial reasons. Lafayette County, for example, participated in “school choice in 2013-14” and lost 30 non-black students.

The majority opinion disputed the dissent that said no facts supported “white flight” in the districts. The opinion said:

The evidence in the record is contrary to the dissent’s assertions that there are “no facts” to support a finding of a white flight problem in Junction City and that interdistrict transfers would have little to no impact on Camden-Fairview’s and Hope’s racial demographics. Multiple superintendents with decades of experience in southern Arkansas schools testified that white flight would be a problem in Junction City.

 

As to the other Districts, all fifteen students requesting interdistrict transfers in Camden-Fairview were from non-black students. The former superintendent of Camden-Fairview (the superintendent when the district was declared unitary) testified that the 1989 Act’s interdistrict transfer prohibition was “critical” to the district achieving unitary status.

 

Of the 70 interdistrict transfer requests from students in Hope, 68 of them were from non-black students. Hope’s superintendent testified that the percentage of nonblack students making interdistrict transfer requests did not surprise him because he had discussions with white parents as to the reasoning why the parents wanted to move their children to a different school district. The reasons included, in part, because there was nobody in the child’s grade to date; there was nobody to invite for sleepovers; and a disagreement with the morals of the student body.

 

The dissent incorrectly focuses on the fact that only 23 students actually transferred from Hope. The lower transfer rate was because the other students’ requests were denied by the receiving school districts. But for the actions of other school districts denying applications, Hope could have lost 3% of its non-black student body, the maximum allowed under Arkansas law, in its very first year of school choice participation.

 

Both school years Lafayette County participated in school choice, Lafayette County lost the maximum 3% of its non-black student body allowed under the law, or very close to it. During the 2013-2014 school year, it lost over 30 of its students to interdistrict transfers. Each one of the transferring students was white. During the 2018-2019 school year, after its application for an exemption from school choice was denied, 35 students requested interdistrict transfers. Once again, each one of the transferring students was white. All but one of the students was accepted by other school districts. The district court did not abuse its discretion in considering and crediting evidence of white flight when it determined that a substantial change in circumstances had occurred warranting modification of the consent decrees.

 

It is a rare setback for the Walton-financed “school choice,” movement, which has produced an upending of the battle to desegregate American schools, as I wrote about this case earlier.

Here, the state wants to do precisely what was defeated in the landmark Aaron v. Cooper case did in Little Rock in 1958 — usurp the power of federal courts so as to allow school segregation.