The four South Arkansas school districts that have so far successfully fought state efforts to force them to allow white-flight transfers under the state school choice law have filed an objection to the state’s request that the full 8th U.S. Circuit Court of Appeals reconsider a decision by a three-judge panel to reject the state’s claim.

The districts are Camden Fairview, Hope, Lafayette County and Junction City. The specific issue is a clarifying order by federal Judge Susan Hickey that the districts’ federal court desegregation plans allow them to exempt themselves from what is now an otherwise unqualified state transfer law. In the four districts, overwhelmingly white parents want to flee to majority-white neighboring districts.

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Here’s the brief opposing an en banc hearing.

What? You say the Arkansas Democrat-Gazette did not take note of this filing? Imagine that. It did include an editorial today lauding the appeal by the state and an amicus brief by Arkansas Learns, the lobby funded by wealthy white businessmen to promote charter schools and school vouchers, to attack the Arkansas Education Association and its affiliates and to decimate the Little Rock School District. Walter Hussman, publisher of the D-G, has been chair of Arkansas Learns’ board and also is a board member of the organization, Arkansans for Education Reform, that pays Gary Newton some $250,000 in salary and benefits to lobby for their aims.

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I mentioned Sunday that the D-G connections were not mentioned in an unusually extensive article leading the Arkansas news section on an amicus brief filed in this case by Arkansas Learns. Nor was it mentioned in today’s fulsome editorial.

As I noted Sunday, amicus briefs are routine and rarely make news in appellate cases. Also, as the school districts noted in their brief, en banc hearings are rarely granted, except in exceptional cases, by rule of the 8th Circuit.

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This case is not exceptional, argued Whitney Moore, lawyer for the district.

Among others, Moore notes the state is trying to make this out to be an interdistrict remedy, frowned on by courts, which it is not. The state proposes to impose an interdistrict scheme on the districts, which don’t want one. Every state transfer law enacted since 2013 allows districts to be exempt from transfers on account of desegregation obligations. Those obligations exist here, though the original court orders had to be modified on account of successive law change since they were entered. The brief said:

The District Court and this Court recognized that repeal of the 1989 Act and post-2013 changes to the law merited modification of the underlying orders. The District Court reviewed the original complaints and concluded that the overarching purpose of each was to eliminate all vestiges of segregation and avoid passive acceptance of practices inconsistent with achieving integration.

This Court, with Judge Kobes dissenting, agreed, finding that “the laws influencing the consent decrees have clearly changed since the Districts entered into the agreements.”

 

“A plain reading of the consent decrees shows that they were intended to prohibit all forms of racial segregation. It was reasonable for the authors of the decrees to rely on existing laws to frame the agreements and not include provisions for actions already prohibited by those laws.”

 

As a result, the Districts may claim their exemptions and may also authorize transfers for demonstrable educational or compassionate need. Such transfers have since been granted, to both black and white students, not on the basis of the child’s race but on the merits of the transfer request.

The districts are hopeful that the U.S. Justice Department will eventually renew its support for the districts’ desegregation efforts, though it has asked for more time to respond.

The Districts trust that the United States will continue to recognize the governing standards it set forth in its 2018 filing: “an affirmative duty to desegregate . . . that constitutes a continuing responsibility not to impede the process of dismantling . . . former dual system[s].”

 

“This affirmative duty compels a school district, formerly segregated by law, ‘to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system’ . . . and is not limited in time or duration, but imposes a continuing obligation to desegregate until the vestiges of segregation have been eliminated.”

The state of Arkansas has returned to the days of Faubus and the seg-era mantra of “freedom of choice.” Resegregation is of no importance to state officials. It is, if not always the point, invariably the result in both class and race.

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Moore’s brief was filed under the name of the Allen Roberts law firm in Camden. You might remember he’s the late lawyer whose obit criticizing the Democrat-Gazette’s posture on school issues was refused as unsuitable for the newspaper’s obituary page. (It was written briefly so as to leave no dime with the newspaper.) Cancel culture anyone?