August 1, 2018. 9:30 a.m. U.S. District Court for the Western District of Arkansas. Judge Susan O. Hickey presiding.
Less than two weeks before school starts, hearings were held on the Camden Fairview, Hope, Junction City and Lafayette County School Districts’ motions for Injunction and Temporary Restraining Orders (TROs) on inter-district school choice transfers approved for residents, but not necessarily students, of their respective districts.
The latter is important because these school districts, led by their school boards, superintendents and attorneys, seek the right to control the choice(s) of all residents of their districts, no matter if they are enrolled in their school districts or not.
Recording devices were not allowed in Court, and the transcript has not yet been made public. What follows is from copious notes made during the day-long proceedings. Arkansas Learns welcomes edits of this record by anyone in attendance during the proceedings. A full transcript will be shared when available.
Opening
Allen P. Roberts, lead attorney for all four districts, opened with “We’re here to preserve the status quo, as these districts have not participated in school choice.” He argued for the Court’s “preservation of the status quo” because of the likelihood that it would decide on the merits in the districts’ favor when the actual cases are heard in five to six months (January or February, 2018).
The State of Arkansas, led by KaTina Guest and Renae Hudson, reminded the Court that a “significant segregative impact” had to be proven by the Plaintiffs. In the past, the Court has found that not even a 6% change was considered significant, so because allowing these transfers would create a less than 1% change in racial demographics, they would certainly not be considered to have a “significant segregative impact.” Further, the impact must be purposeful segregation, with the State proven to have intent to segregate.
Ms. Guest argued that the students’ status quo is what should be preserved – properly approved transfers.
She shared that Camden Fairview has been deemed unitary by the federal court, therefore a new lawsuit must be filed. She shared that the Eighth Circuit has ruled that Courts cannot ambiguously craft existing consent orders nor is it entitled to modify existing orders in perpetuity. Other relevant points included:
- No single child in any of the districts has alleged denial of equal protection
- There is no likelihood of the districts’ success on the merits
- There is no irreparable harm to the districts in allowing the approved transfers
- There is no immediate financial harm to the districts funding because that is determined by ADM (Average Daily Membership) for the previous three quarters
- There is no irreparable harm because funding is recalculated every year
Camden Fairview
Mark Keith, superintendent of the Camden Fairview School District, was called as a witness by counsel for the district. On cross examination…
Mr. Keith admitted that Camden Fairview was unitary.
Mr. Keith admitted that his elementary schools were “Cs and D” and his high school received a “C.”
Mr. Keith said he doesn’t “take offense to anybody trying to do better.”
Mr. Keith admitted that none of his district’s consent decrees mention Smackover, the preferred destination for most of his school choice applicants.
Mr. Keith admitted the transfers would have no immediate or financial harm to the district.
Because the 15 approved transfer students were not enrolled in the district in 2017-18, Mr. Keith admitted they would have no segregation impact.
When pressed about what harm the district would have, he answered, “Perception of White children leaving.”
The State’s counsel asked, “You just believe students should have no choice?”
Mr. Keith answered “I’m stingy.”
Smackover-Norphlet Superintendent John Gross was called as a witness by the State.
He shared that 14 accepted transfers to Smackover-Norphlet School District were from Camden Fairview and three were from Parkers Chapel. Of those, all were White, except one that was two or more races.
Holly Strickland, Smackover Elementary Principal was called by the State. She testified that transferring students from Camden Fairview were coming from Home and private schools, and that parents were comparing school Report Cards.
Parent Gregory Nelson was called by the State as a witness. Mr. Nelson lives in Stephens and has a seventh grade daughter who attended Columbia Christian, a private school in Magnolia, in 2017-18. The Nelsons have lived in Arkansas for twenty years, and Mr. Nelson’s wife works one mile from Magnolia Junior High School.
When asked why they sought school choice, Mr. Nelson answered that they wanted their daughter to attend public school for better opportunities. She has never attended school in Camden Fairview, their resident district. His wife works an hour from what would be their daughter’s school, and he works further away. He shared that his daughter would be moviing from a nearly all White private school to a diverse public school.
Upon cross examination, Mr. Nelson told Attorney Roberts that his daughter “will not, has never, and never will attend Camden Fairview.”
Roberts called current Watson Chapel and former Pulaski County Special School District and former Camden Fairview Superintendent Jerry Guess as a witness.
Dr. Guess admitted that he lives in Camden and does not live in the the district he serves. He shared that the State’s 1989 School Choice law limited transfers by race, in that students could not transfer to a district where their race was in a higher percentage that their resident district.
Upon cross examination, Dr. Guess claimed that he retired from the Pulaski County Special School District. When pressed, he admitted that he was terminated. When asked why, he said “because they (the board) did not want to be unitary.”
“We worked too well.”
“The powers in PCSSD and State wanted to consolidate. They (the board) would not allow him to pursue that course.”
Dr. Guess could offer no testimony as to the 1989 consent decree’s intent, as he had no involvement before 2002. When asked when he had an independent recollection, he responded the 2002 hearing. He admitted that the plaintiff and district agreed that the district was unitary in 2002.
He also admitted that none of the consent decrees memorialize other districts other than Harmony Grove, and that there was no reliance on the 1989 act in regard to inter-district transfers.
When asked by Attorney Roberts if it was a problem, “White going to Whiter,” Dr. Guess answered “Yes.”
Hope
Superintendent Bobby Hart was called as a witness. He claimed the district has 2,237 students, and that Hempstead County is 35% Black. [NOTE: Hope School District is 45% Black]
On cross examination, he shared that “Hope feels it’s unitary in every area, but not required for school choice.”
He conveyed an anecdote that he had parents in his office say, “There is nobody their daughter can date,” and “There is no one in our son’s fifth grade class to have a sleepover.”
He said “White Flight” happens when a district becomes 30-35% Black, then White families start looking for Whiter schools [NOTE: Hope is 18% White].
He admitted that he could not testify that 23 accepted transfers from Hope had any racial animosity.
He also admitted that even though Hope has had no school choice, it has still lost White enrollment. Therefore, school choice has had no segregative impact.
He admitted that the 1993 Davis case did not mention inter-district transfers, but that the issue was whether or not an employee – Rose Davis – was fairly treated. As a result of the case, activities were integrated, as were intra-district student assignments.
When asked if he could comply with this order even if he lost 15 students, he answered “Correct.”
He was asked if bullying and safety were legitimate concerns for parents.
He admitted Spring Hill, Nashville, Nevada – destination districts of approved transfers – were not part of the Davis case.
He agreed that the 3% cap could have meant he lost approximately 70 transfers, but that the existing approved transfers only accounted for 1.3% of Hope’s enrollment.
He admitted that some transferring students were not enrolled in the Hope district, but attended private school.
He admitted that Hope would experience no harm in funding and would experience no immediate financial harm.
He admitted that Hope High School received an ‘F’ on the School Report Cards, and that Clinton Elementary received a ‘D,’ Beryl Henry Elementary received a ‘C,’ and Yeager Middle received a ‘D.’ He though Spring Hill schools received ‘Bs.’
He claimed that no non-residents were admitted to Hope, even though the application for the district’s Garland Learning Center said in district and out of district students may apply. He claimed that was a mistake, and that if he found out any non-resident students were accepted, he would kick them out.
It was pointed out that only after an intra-district application to Garland had been rejected that a family then sought inter-district school choice.
When asked what would be the harm to Hope if it loses seven White students, he answered, ‘If seven go, I’m most concerned about the 2,200 others.”
He agreed that if the transfers were allowed to proceed that he would not violate the constitutional rights of those who remained.
Junction City
Junction City Superintendent Robby Lowe was called as a witness by Attorney Roberts. Mr. Lowe reported 673 students, 60% “non-Black.” [NOTE: “Non-Black is an anachronistic term used when diversity meant essentially Black and non-Black, the latter of which included all non-Black ethnic groups.]
On cross examination, Mr. Lowe said he believes “they are unitary as long as they don’t participate in school choice.” He said five transfers had been approved from Junction City to Parkers Chapel, all “non-Black.”
He said they had ten Legal Transfer requests, but that only two had been granted because they were “in the best interests of the child.” He said he believes participating in school choice will open the floodgates and that the district would see increasing numbers of Whites leaving.
Mr. Lowe admitted that non of the five approved transfer students had ever attended school in Junction City.
He admitted that the district would be in no worse position because of the transfers.
He also admitted that the demographics of the district did not change with the “floodgates open.”
He admitted there would be no immediate, irreparable financial harm to the district because of the transfers.
He admitted that there had been no action regarding the district’s consent decree since 1970.
He admitted that the district was unitary and that it is not discriminating against Black children.
He admitted that he was not going to set up a dual system of schools.
He admitted that Junction City had received non-resident students, by agreement, from Louisiana since 1894. [NOTE: At least one-fourth of Junction City’s enrollment is from non-resident school choice students from Louisiana who are admitted without regard to race nor concern about the district’s federal consent order.]
He admitted that parents have valid interest in quality schools.
He admitted that Junction City received a D and Cs, while Parkers Chapel received Bs.
[NOTE: It was shared outside of Court that Mr. Lowe, like Dr. Guess, does not live in the district he serves. In fact, he does not even live in Arkansas. We consider that relevant because the districts believe all students living in the district must attend school in the district, while they do not hold their employees to the same standard. In fact, non-resident employees are allowed to transfer their students into the district, while resident employees of other districts are able to transfer their students to the employer’s district.]The State called Sarah Sayers-McCoy, a Junction City resident parent.
Ms. Sayers-McCoy shared that she is “heartbroken to be called racist, as motivation by race has not at one time come into our thoughts.”
In emotional testimony, she shared being accused of being “privileged,” while she considered herself “blessed.” She said her family was accused of being “privileged racists.”
When asked, “Are you a racist?,” she answered “absolutely not.”
She said, as a mom, she appeared to plead to Court for opportunity for her son.
She shared that someone opposed to choice sent her an anonymous message which said even though she is doing it (seeking transfer) for racial reasons, the author would be a support group for her if she enrolled her son in Junction City.
When asked if she was afraid to enroll her son in Junction City, she answered that he is “not coming.” He “will go private.” After receiving approval of the transfer from Parkers Chapel, her son has been involved in sports and other activities, and they have no intention of sending him to Junction City.
On cross examination, Attorney Roberts asked “Did you apply for a Legal Transfer?” It became apparent that Ms. Sayers-McCoy did not know the difference between inter-district school choice (open to all) and Legal Transfer, which requires agreement by resident and receiving districts.
Roberts asked: “Do you consider yourself a segregationist?” She answered, “No.”
He then asked “Do you believe desegregation is in the public interest?”
She answered, “Not if you file a Temporary Restraining Order on families one week before school.”
“I know what’s best for my son,” said Ms. Sayers-McCoy.
She said her husband attended and graduated from Junction City, while she attended and graduated from El Dorado.
Roberts asked again: “If you do not have school choice, will you ask for legal transfer?” Ms. Sayers-McCoy still was unaware of the difference in the types of transfers, which is understandable since the superintendent testified he had only granted two legal transfers.
Judge Hickey interjected and asked Ms. Sayers-McCoy why she did not consider El Dorado School District for transfer. She answered that she would love her child to go El Dorado, but they had decided smaller was better.
Lafayette County
Attorney Roberts called Lafayette County Superintendent Robert Edwards as a witness.
Mr. Roberts testified that the district was 61.1% “Black American.”
He said the district “chose to participate (in School Choice) in 2013-14,” and the district had 31 transfers – all white – to Spring Hill or Taylor. [NOTE: The fact that the district admitted that it “chose” to participate in inter-district school choice should be prima facie evidence that its federal order did and does not preclude the district’s participation in school choice.]
He testified that Lafayette County is the consolidated district of Lewisville, Stamps and Buckner in 2002-03.
He testified that Spring Hill is “99.9% White.” [NOTE: It’s 85%.]
He testified that Emerison-Taylor-Bradley is 16.1% “Black American.”
He was asked, “Do you think participating in school choice would be damaging?”
He answered, “Yes. Would make ‘Blacker’.”
He admitted that nothing had changed in the district’s federal court order since it “chose” to participate in school choice.
He testified that the district had 35 transfer applicants this year, with 34 accepted. Without being asked, he said those accepted were “all White.”
He was asked, “Do you believe voluntarily participating in school choice would hurt the district?”
He said yes.
When asked why, he answered: “Greater Black atmosphere.”
When asked, “Is that a harm,” he answered: “Absolutely.” He furthered, “Continuing to allow White Americans to leave, you’re essentially recreating segregation.”
On cross examination, he was asked, “What constitutes harm?”
He was reminded that there was an annual 3% cap on transfers from a district. He was asked if he has checked to see what his cap would be. He answered that he didn’t know what his cap would be.
He admitted that Nevada and Magnolia had demographics comparable to Lafayette County.
He admitted that not all families seeking choice were seeking transfer to districts with different demographics. In fact, only six were seeking transfer to Emerson-Taylor-Bradley, a district with different demographics.
He admitted that parents and the public have a genuine interest in academic success.
He admitted that Lafayette County schools received Ds, while Emerson-Taylor-Bradley received Bs.
He was asked if he believed Lafayette County cannot participate in school choice without violating its court order, even though that order did not involve Stamps, Nevada, Emerson-Taylor-Bradley.
He admitted that since the decree had been entered, there had been no action to challenge saying the district was refusing to comply.
He admitted that the lawsuit did not involve inter-district school choice.
He admitted that the original Mary Turner lawsuit was regarding fair employment practices and student unitary non-discrimination within the district.
He admitted that if the district participates in school choice it can still provide non-discriminatory education.
He admitted that the district would have no immediate financial harm, because the funding is based on ADM (Average Daily Membership) of three quarters ago, plus the district would receive declining enrollment funds if it’s enrollment declined.
Lafayette County Parent Tiffanie Green was called as a witness for the State.
She said she has four children, ages 16, 12, 10 and 9. All had attended Lafayette County for at least one year.
Ms. Green shared a story about her first grade daughter. A child had tried to kiss her. It was reported to the teacher, but nothing changed. It was reported to the principal, but nothing changed. The principal said Ms. Green should say something to the child, but she refused.
In other instance, the PE Coach did not allow students to stop for water. As a result, her daughter had a seizure. She was sent to the bathroom alone. There, she had another seizure and was later found on the floor. She was taken to the nurse.
Ms. Green was 25-30 minutes from school, and her husband was in Texas.
When Ms. Green arrived, her daughter sat in the office, covered in blood, vomit, and no ambulance had been called.
She took her straight to the emergency room, where she was diagnosed with heat exhaustion. As a result, her daughter now suffers from permanent heat sensitivity. She was pulled from the school.
Ms. Green recounted that “we’ve been blocked every step of the way. We get one shot (with our children). We don’t get a do-over. I want to do what’s best for my child.”
So, she applied for a custodian position at Emerson-Taylor-Bradley [NOTE: Non-resident employees are allowed school choice.]. She spent a year sweeping, cleaning toilets, and took a pay cut for her children.
She said reported things said on social media about her family – called racial slurs, bigots, claims that they just want to get away from Black people. She shared that two of her daughter’s best friends are bi-racial.
She said she has grown a “thicker skin,” but her kids are confused.
When asked if there was any way race was a part of her decision, she answered, ‘Absolutely not!”
She said she had “no faith in the school district to keep her kids safe.”
On cross examination, she said her “kids were behind,” but now her daughter going into the fifth grade scored at mid-9th grade level on the ACT Aspire.
In regard to her children, she said, “They’re thriving, blossoming.”
In 2013-14, they were turned down for transfer. She appealed, but the State upheld the denial, so she got a job in the Emerson-Taylor-Bradley School District.
The State called Gary Hines, superintendent at Emerson-Taylor-Bradley, as a witness.