Judge agrees with HPS on school choice
Judge agrees with HPS on school choice
Ken McLemore, Hope Public Schools
Friday, January 25, 2019

Attorneys for the Hope Public Schools apprised the Hope Public Schools Board here Monday of the ruling of U. S. District Court Judge Susan O. Hickey which allows the district to seek modification of a 1989 civil consent decree by the court so that the district may abide by the agreement and comply with state school choice law.

Camden attorney Allen Roberts said the ruling represented a positive step for the district.

“We think that we won,” Roberts quipped. “We anticipate an appeal to the court of appeals by the state.”

Roberts said that estimation is based upon the manner in which Hickey dealt with the issues in the case, focusing narrowly upon the question of the application of the consent decree, while ruling other aspects of the case moot.

Roberts said he believed the Arkansas Department of Education will make an assertive response.

“I’m not optimistic,” he said. “What I had anticipated, in short form, is a mediation agreement.”

Roberts said he has broached the idea of a federal mediator resolving the case, but that remains an open question.

“We are optimistic about the outcome of an appeal,” he said. “We hope the Eighth Circuit will send it back on remand.”

Arkansas School Board Association Attorney Whitney Moore, of Little Rock, explained the

17-page order issued Jan. 17 by Judge Hickey based upon the 1988 civil discrimination case Davis v. Franks to which the consent agreement applies. Moore said the Hope Public School District has since that time operated under the provisions of the agreement and in accordance with the Arkansas Public School Choice Act of 1989. She said HPSD has consistently sought exemption from the inter-district student transfer provision of the 1989 law based upon the federal consent agreement.

Moore said the HPS’ motion before the court to modify the agreement’s language explains that U.S. District Judge Morris Arnold retained the court’s jurisdiction over the settlement of the case in 1989. She noted that HPS has been under the court’s jurisdiction since that time.

“In 2013, the Arkansas Public School Choice Act of 2013 was enacted, expressly repealing the 1989 Act,” Hickey wrote. “However, the 2013 Act did not contain the 1989 Acts’ limiting language barring segregative inter-district transfers.”

She said the 2013 law provided for school districts under a federal court order “remedying the effects of past racial segregation” to declare themselves exempt from the school choice law based upon the federal order. Hickey said another change in the law in 2015 eliminated the exemption declaration and required districts under such orders to prove to the Arkansas Department of Education that participating in school choice resulted in a “genuine conflict” with a federal court order.

However, in 2017, Act 1066 of that year amended the 2015 school choice law to require districts seeking exemption to demonstrate a “genuine conflict” with a federal court order that “explicitly limits the transfer of students between school districts.”

Under the 2017 law, the ADE was the evaluator of the district application for exemption from school choice and the Arkansas Board of Education the venue of appeal. In January, 2018, the ADE denied the HPS application for exemption from school choice based upon the explicit limit language of the 2017 law, and the SBE denied the district’s appeal.

In summary, Hickey said the district’s ability to abide by both the 1989 consent agreement and state school choice law was uninhibited from 1989-2017. She wrote that the result of the 2017 change in the law was to create a circumstance where HPS could not abide by both the consent agreement and state law.

Hickey ruled that the HPS request to modify the language of the agreement was justified.

“Upon consideration, the Court finds that the repeal of the 1989 Act and its subsequent replacement by the 2013, 2015, and 2017 Acts is a significant change in circumstances,” she wrote.

Moore said the ruling expressly rejected arguments by the state of an “implied unitary status” for the Hope Public Schools; and, Hickey rejected the idea that modification of the Davis agreement to prohibit segregative inter-district student transfers was an unacceptable limitation upon other school districts accepting student transfers from Hope.

Hickey called the state arguments for those points “unavailing” and “unpersuasive.”

“If we get to the Eighth Circuit Court of appeals, we’ve got some arguments to make,” Moore said.