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Best Interests of Students v. Self Interests of John Walker

Posted By Arkansas Learns, Tuesday, September 18, 2018
Updated: Wednesday, September 19, 2018

Monday night, at a public meeting at Pinnacle View Middle School (PVMS), two parents submitted an alternative plan to those proposed by the Little Rock School District for the empty 70,000 sf building on the PVMS campus. The parents' pragmatic approach suggested that the Little Rock School District utilize the building to expand campus capacity to accept rising sixth graders from the Pulaski County Special School District. In turn, the Pulaski County Special School District's Robinson campus would accept rising ninth graders from PVMS. The two campuses are just 3 miles apart on Highway 10.

 

Collaboration between traditional school districts south of the river. What a concept.

 

Tuesday morning, Cynthia Howell wrote about it in the Arkansas Democrat-Gazette.

 

Tuesday afternoon, John Walker referenced it in a filing to U.S. District Judge D. Price Marshall, Jr. and mischaracterized the parent initiative by writing: "on information and belief, it appears that the PCSSD and LRSD are engagedIn discussion regarding obligations and possible repurposing the Robinson schools and the Pinnacle View school in the LRSD."

 

To our knowledge, they are not. But if they are, it's about time.

 

Little Rock, Central Arkansas and the entire State of Arkansas will not grow or thrive until the best interests of students are prioritized over the self interests of adults, in this case, John Walker's.

 

His latest, knee-jerk federal court filing embodies everything that's wrong with public education in the county. Unitary status for PCSSD cannot come soon enough.

 

The irony in all of this is that individual parents do not need to wait on John Walker, LRSD or PCSSD. If it has capacity, PVMS is already available to LRSD students via School Choice. And Robinson is available to LRSD students in the same way. Simply complete and submit the School Choice Application by May1st. http://www.arkansased.gov/public/userfiles/Public_School_Accountability/Equity_Assistance/School_Choice_Application_2015.pdf

 

The only issue is whether or not the adults in charge, who claim they want everyone in traditional public education, will buck the status quo politics and create the capacity to meet immediate overwhelming demand.

 

Over John Walker's and former LRSD board members' strenuous objections, parents made Pinnacle View Middle School happen. If there's a rematch, we're betting on the parents.

 

P.S. When the Intervenors' attorney can't even spell "Schoool" correctly, you know he's in a hurry.

 

Text of filing below. Actual filing attached.

 

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS 

WESTERN DIVISION 

 

LITTLE ROCK SCHOOL DISTRICT PLAINTIFF 

 

v. 4:82cv866DPM 


PULASKI COUNTY SPECIAL 

SCHOOOL (SIC) DISTRICT, ET AL. DEFENDANT 

 

MRS. LORENE JOSHUA, ET AL. INTERVENORS 

 

Intervenors' Motion to Defer Hearing on Facilities 

to a Date After November 1, 2018 

 

The Court has indicated that it will make further visits to PCSSD schools –College Station, Fuller, Harris and Sylvan Hills. Intervenors counsel suggest that the hearing set for Monday, September 24, 2018 be deferred and reset subsequent to the Court’s visits to said schools.

 

Further, on information and belief, it appears that the PCSSD and LRSD are engaged In discussion regarding obligations and possible repurposing the Robinson schools and the Pinnacle View school in the LRSD.

 

Joshua submits that judicial economy would be best served by rescheduling the hearing. 

 

Respectfully submitted, 

 

/s/ John W. Walker 

 John W. Walker

JOHN W. WALKER, P.A. 

1723 Broadway 

Little Rock, Arkansas 72206 

501-374-3758 

501-374-4187 (facsimile) 

Email: johnwalkeratty@aol.com 

 

Robert Pressman 

Austin Porter 

 

Certificate of Service

 

I do hereby certify that a copy of the foregoing Motion has been filed utilizing the CM/ECF system wherein a copy will be automatically served upon all counsel of record on this 18th day of September, 2017.

 

/s/ John W. Walker 

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Lafayette County School District’s Motion for Temporary Restraining Order, Preliminary Injunction is DENIED

Posted By Arkansas Learns, Wednesday, August 8, 2018
Updated: Wednesday, August 8, 2018

CASE NO. 4:92-CV-4040

 

IN THE UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF ARKANSAS 

TEXARKANA DIVISION

 

MARY TURNER, et al. PLAINTIFFS

 

V.

 

LAFAYETTE COUNTY SCHOOL DISTRICT, et al. DEFENDANTS

 

ARKANSAS DEPARTMENT OF EDUCATION and 

ARKANSAS STATE BOARD OF EDUCATION INTERVENORS

 

ORDER 

Before the Court is Lafayette County School District’s (“LCSD”) Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 47). Plaintiffs have filed a response in support of the requested relief.1 (ECF No. 51). The Arkansas Department of Education and the Arkansas State Board of Education (the “ADE and SBE”) have filed a response in opposition. (ECF No. 57). LCSD has filed a reply. (ECF No. 60). On August 1, 2018, the Court held a hearing on the matter. The Court finds this matter ripe for consideration.

 

1 In their response, Plaintiffs state that they join LCSD in the instant motion, and also independently move for a temporary restraining order or preliminary injunction enjoining LCSD from participating in school choice. However, Plaintiffs have not briefed the issue and, therefore, the Court cannot consider Plaintiffs’ independent request for preliminary injunctive relief. See Local Rule 7.2(e) (providing that motions for preliminary injunctions shall not be considered unless accompanied by a separate brief). Accordingly, the Court will simply consider the instant motion to be a joint motion for injunctive relief.

 

I. BACKGROUND 

This lawsuit was filed in April 1992 by African American individuals who were employed by or were parents of students who attended the Lewisville School District No. 1. In March 1993, the Court dismissed the case with prejudice subject to the terms of a consent decree entered into by the parties (hereinafter the “Turner Decree”). (ECF Nos. 9 & 10). The Turner Decree provided that “[t]he district shall hereafter maintain a unitary, racially non-discriminatory school system 

 

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wherein all schools are effectively and equitably desegregated and integrated.” (ECF No. 9, ¶ 13; ECF No. 27-1, ¶ 13). The Turner Decree further stated that “[t]he Court shall have continuing jurisdiction of [the decree] in order to insure compliance with the spirit and terms of [the decree]. (ECF No. 9, ¶ 13; ECF No. 27-1, ¶ 13). 

On November 23, 2015, the Court ordered the substitution of LCSD for Lewisville School District No. 1 as a party to this matter because Lewisville School District No. 1 had been consolidated with the Stamps School District to form the Lafayette County School District. (ECF No. 26). The Court found that because Lewisville School District No. 1 had ceased to exist and had been succeeded by LCSD, the substitution of LCSD as a party to this matter was proper to facilitate the continuation of the case.

 

On May 28, 2018, LCSD filed a Motion for Declaratory Judgment, or Alternatively, for Clarification of Previous Orders, or Alternatively, for Modification of Previous Orders (hereinafter “Motion for Declaratory Judgment”). (ECF No. 27). In that motion, LCSD informed the Court that although it believes it is still subject to the Turner Decree—and therefore has a conflict with taking part in school choice—the ADE and SBE have ordered LCSD to participate in school choice for the 2018-19 school year pursuant to the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of the Regular Session of 2017 (hereinafter the “2017 Act”).2 Accordingly, LCSD’s Motion for Declaratory Judgment seeks, by various alternative means, a finding that LCSD is prohibited from taking part in school choice and/or a declaration that portions of the 2017 Act are unconstitutional. (ECF No. 28).

 

2 The 2017 Act provides, in relevant part, that each Arkansas school district must participate in a school choice program wherein students may apply to attend a school in a nonresident district, subject to certain limitations. Ark. Code Ann. § 6-18-1903. School districts may apply for exemptions from participating in school choice by producing evidence that the district has a genuine conflict under a federal court’s active and enforceable desegregation order or plan that explicitly limits the transfer of students between school districts. Ark. Code Ann. § 6-18-1906(a). The ADE decides a school district’s application for an exemption from participating in school choice and the SBE hears appeals of the ADE’s decisions on the same. See id. 

 

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On May 23, 2018, the Court issued an order certifying LCSD’s constitutional challenge and sending notice to the Arkansas Attorney General of the same, pursuant to Federal Rule of Civil Procedure 5.1(b). (ECF No. 29). On June 21, 2018, the ADE and SBE filed a motion to intervene in this case for the limited purpose of opposing LCSD’s Motion for Declaratory Judgment. (ECF No. 37). On June 22, 2018, the Court held a status conference in which LCSD, Plaintiffs, and counsel from the Arkansas Attorney General’s Office participated. On July 2, 2018, the Court granted the Motion for Limited Intervention filed by the ADE and SBE, thereby allowing those parties to intervene for the limited purpose of opposing LCSD’s Motion for Declaratory Judgment. (ECF No. 44). On July 16, 2018, the ADE and SBE filed their response in opposition to LCSD’s Motion for Declaratory Judgment. (ECF No. 45).

 

On July 19, 2018, LCSD filed the instant motion. LCSD seeks preliminary injunctive relief “restraining the [ADE] and the [SBE] from enforcing the [SBE’s] March 26, 2018 order requiring LCSD to participate in the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of 2017” or, alternatively, “that the Court enjoin LCSD from participating in school choice pursuant to the [SBE’s] Order.” (ECF No. 47, ¶ 1). LCSD requests that injunctive relief remain in effect until an evidentiary hearing may be held on the issue of whether LCSD’s desegregation obligations conflict with participation in school choice. LCSD also requests that if injunctive relief is granted, that the bond requirement be waived. On July 20, 2018, Plaintiffs filed a response in support of the motion. (ECF No. 51). On July 28, 2018, the ADE and SBE filed a response in opposition. (ECF No. 57).

 

II. LEGAL STANDARD 

Rule 65 of the Federal Rules of Civil Procedure governs preliminary injunctions and temporary restraining orders. “The primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full, effective relief.” Ferry-Morse Seed 

 

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Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984). It is well established that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). 

The determination of whether a preliminary injunction is warranted involves consideration of: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties . . . ; (3) the probability that [the] movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). Although no single factor in itself is dispositive, the probability of success on the merits is the most significant. Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013). “The burden of proving that a preliminary injunction should be issued rests entirely with the movant.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).

 

III. DISCUSSION 

The Court will first address whether LCSD will be irreparably harmed absent an injunction, and then will turn to the other Dataphase factors, if necessary. 

Although the probability of success on the merits is the predominant Dataphase factor, the Eighth Circuit has “repeatedly emphasized the importance of a showing of irreparable harm.” Caballo Coal Co. v. Ind. Mich. Power Co., 305 F.3d 796, 800 (8th Cir. 2002). A party seeking injunctive relief must demonstrate that the injury is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm. Packard Elevator v. Interstate Commerce Comm’n, 782 F.2d 112, 115 (8th Cir. 1986). To carry its burden, a party must demonstrate that a cognizable danger of a future violation exists and is more than a mere possibility. See Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (citing Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931)). The failure to demonstrate irreparable harm is an 

 

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independently sufficient ground to deny injunctive relief. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). 

LCSD argues that it will suffer irreparable harm if injunctive relief is denied. Specifically, LCSD argues that if students are allowed to transfer, it is unlikely those students will ever return to LCSD. LCSD claims that this will cause irreparable harm in that it will suffer a segregative impact as well as “the financial impact caused by the loss of 42 students.” (ECF No. 48, p. 7). At the preliminary injunction hearing, LCSD also argued that it could suffer irreparable harm by being required to participate in school choice until the Court rules on LCSD’s underlying Motion for Declaratory Judgment, thereby violating the Turner Decree during that period.

 

In response, the ADE and SBE argue that the harm LCSD cites is “certainly not irreparable.” (ECF No. 57, p. 22). The ADE and SBE assert that if LCSD were to ultimately prevail it is “entirely possible” that the Court would order that students that had transferred must return to LCSD and “order the restitution of the per-student funding that LCSD lost by virtue of the unconstitutional application of the school-choice law.” (ECF No. 57, p. 22). Furthermore, the ADE and SBE assert that the only harm that would result from a denial of preliminary injunctive relief would be the loss of forty-two students and that—if LCSD ultimately prevailed—future losses would be prevented through permanent injunctive relief. Finally, the ADE and SBE argue that the “difference a denial of injunctive relief [and, accordingly, the loss of forty-two students] would make is a less than 5% increase in the black percentage of its student body.” (ECF No. 57, p. 22). According to the ADE and SBE, his change would be de minimis and no student would notice such a change and no parent’s “perception of LCSD’s racial identity would be affected[.]” (ECF No. 57, p. 22).

 

Upon consideration, the Court finds that LCSD has failed to carry its burden of establishing that, absent preliminary injunctive relief, it will suffer irreparable harm. The Court is not 

 

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persuaded that LCSD will suffer imminent financial harm if the approved student transfers leave LCSD. Robert Edwards, superintendent of LCSD, testified at the August 1, 2018 hearing that LCSD’s funding for the 2018-19 school year is already in place and based on LCSD’s average daily membership three quarters ago. Likewise, Mr. Edwards testified that LCSD will receive those funds regardless of the loss of the transferring students. Taken together with the testimony offered by other superintendents in the other school desegregation cases before the Court, it becomes clear that the loss of students will not cause an imminent financial harm to the student’s former district so as to require preliminary injunctive relief. Although Mr. Edwards’ testimony suggests that LCSD might suffer financial harm in several years due to the reduction in students, this potential harm is too far removed from the present to support a finding of irreparable harm. See Rogers, 676 F.2d at 1214 (stating that a preliminary injunction “may not be used simply to eliminate a possibility of a remote future injury”).

 

Moreover, the Court is not convinced that the loss of certain students, in and of itself, constitutes irreparable harm to LCSD. LCSD cites no authority supporting this proposition, and the Court is unaware of any. Absent any such authority, the Court cannot find that LCSD will suffer irreparable harm solely from the loss of certain students.

 

The Court is also unpersuaded by LCSD’s argument that it will suffer irreparable harm by being required to participate in school choice until the Court rules on LCSD’s underlying Motion for Declaratory Judgment. At the preliminary injunction hearing, LCSD argued that if the Court were to eventually rule in LCSD’s favor on the Motion for Declaratory Judgment, LCSD will have violated the terms of the Turner Decree by participating in school choice in the meanwhile. To be fair, this could constitute harm in certain circumstances. However, this notion is predicated on the idea that the Court will eventually grant LCSD’s Motion for Declaratory Judgment. If, on the other hand, the Court denies the instant motion and eventually denies LCSD’s Motion for 

 

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Declaratory Judgment, LCSD will not have suffered any harm from participating in school choice, as the Court will have determined that LCSD may do so without violating the Turner Decree. It is well established that irreparable harm must be certain and cannot be speculative. See S.J.W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 779 (8th Cir. 2012) (“Speculative harm does not support a preliminary injunction.”). This argument, at this point, is too speculative, as the mere possibility of harm is inadequate to support a finding of irreparable harm.

 

In sum, the Court finds that LCSD has not satisfied its burden of making a clear showing that it would suffer irreparable harm absent injunctive relief. Mazurek, 520 U.S. at 972. Accordingly, the Court need not proceed to the remaining Dataphase factors, as failure to show irreparable harm is an independently sufficient ground to deny injunctive relief.3 Watkins, 346 F.3d at 844.

 

3 The Court also finds that LCSD has not satisfied its burden to obtain a temporary restraining order, as the Dataphase factors are also used to determine whether to issue a temporary restraining order. See Williams v. Silvey, No. 4:09-cv-211-FRB, 2009 WL 1920187, at *1 (E.D. Mo. July 1, 2009) (applying the Dataphase factors in denying a motion for a temporary restraining order). Thus, the Court’s analysis for whether to grant a request for a temporary restraining order is the same as for a preliminary injunction.

 

IV. CONCLUSION 

For the foregoing reasons, the Court finds that Lafayette County School District’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 47) should be and hereby is DENIED.

 

IT IS SO ORDERED, this 8th day of August, 2018.

/s/ Susan O. Hickey 

Susan O. Hickey 

United States District Judge 

 

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Junction City’s Motion for Temporary Restraining Order, Preliminary Injunction DENIED

Posted By Arkansas Learns, Wednesday, August 8, 2018

Case No. 1:66-cv-1095

 

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION 

UNITED STATES OF AMERICA

 

PLAINTIFF 

 

JUNCTION CITY SCHOOL 

DISTRICT NO. 75, et al.

 

v.

 

DEFENDANTS

 

ARKANSAS DEPARTMENT OF EDUCATION and 

ARKANSAS STATE BOARD OF EDUCATION INTERVENORS

 

ORDER

 

Before the Court is the Junction City School District’s (“Junction City”) Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 22). The Arkansas Department of Education and the Arkansas State Board of Education (the “ADE and SBE”) have filed a response in opposition. (ECF No. 32). Junction City has filed a reply. (ECF No. 34). On August 1, 2018, the Court held a hearing on the matter. The Court finds this matter ripe for consideration.

 

I. BACKGROUND

 

Before proceeding to the merits of the instant motion, the Court finds it necessary to provide a brief overview of this litigation. On February 7, 1966, Plaintiff United States of America (“United States”) filed this action against Junction City seeking to dismantle the district’s operation of a dual school system. (See ECF No. 20-1). On June 21, 1966, the United States filed a Motion for Preliminary Injunction requesting that Junction City and other defendants be enjoined from continuing to assign students to particular schools because of their race; operating separate school buses for black and white students; segregating faculty and staff based on race; and maintaining 

 

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any distinctions in the operation and management of Junction City based on race or color. (See ECF No. 20-2, p. 5). On August 15, 1966, the Court granted the United States’ Motion for Preliminary Injunction and issued an order enjoining Junction City from “maintaining and operating racially segregated public schools” and directing Junction City to eliminate its dual school system “with all deliberate speed.” (ECF No. 20-3, p. 3). On September 8, 1966, Junction City responded by filing a “freedom-of-choice” desegregation plan to which the United States objected and proposed its own plan. (ECF No. 2-4). On November 29, 1966, the Court entered an order finding that neither proposed plan was acceptable and directing Defendants to “institute a good faith freedom of choice plan for desegregation of the 11th and 12th grades beginning in January 1967.” (ECF No. 1, p. 3). The Court further ordered Junction City and other defendants to submit a report to the Court regarding its implementation of the freedom-of-choice plan. On August 14, 1967, the Court issued a decree requiring Junction City to implement a freedom-of-choice plan and setting forth the procedural framework for implementing the plan. (See ECF No. 20-4).

 

On May 24, 1968, the United States moved the Court for an order requiring the consolidation of the Junction City schools. After a hearing on the motion, the Court cancelled its decree dated August 14, 1967, and ordered Junction City to “propose an alternate plan for the conversion of the school system to a unitary system in accordance with the decisions of the Supreme Court made May 27, 1968, for all students in attendance.” (ECF No. 2-1, p. 3). The Court allowed Junction City to begin operating schools in September 1968 under the freedom-of-choice plan until the district filed a consolidation plan in January 1969. (ECF No. 2-3). The Court then issued several orders directing Junction City to allow certain grades to attend school under the freedom-of-choice plan and further directing the district to consolidate all students in certain grades. (See id.; see also ECF No. 2-5 (assigning students grade 9-12 to Junction City High School 

 

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and permitting students from other grades to attend either Junction City Elementary or Rosenwald School)). 

On October 23, 1970, the United States moved for further relief against Junction City on the grounds that Junction City failed to remedy its within-school segregation and its segregated transportation system. (ECF No. 2-6). On November 20, 1970, the Court entered an Order enjoining Defendants from maintaining any homeroom, classroom, or other school-related activity on the basis of race, color or national origin. (See ECF No. 2-7). The Court’s Order further directed Defendants to redraw their bus routes and reassign students to the busses on a non-racial basis. Id.

 

On May 17, 1974, the Court entered an order dismissing a companion desegregation case brought by private plaintiffs against Junction City, Love v. Junction City Sch. Dist., No. ED-70-C-51. (ECF No. 2-8). The Court’s order further moved this action to its inactive docket. See id. In addition, the order provided that the Court retained jurisdiction over this action so that it could be “re-opened at any time by appropriate and meritorious petition.” Id.

 

On May 14, 2018, Junction City filed a Motion for Declaratory Judgment, or Alternatively, for Clarification of Previous Orders, or Alternatively, for Modification of Previous Orders (hereinafter “Motion for Declaratory Judgment”). (ECF No. 2). In that motion, Junction City states that it is still subject to its desegregation obligations imposed by the Court’s prior orders. Accordingly, Junction City asserts that it has a conflict with taking part in school choice pursuant to the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of the Regular Session of 2017 (hereinafter the “2017 Act”).1 Junction City states further that the ADE and SBE have 

1 The 2017 Act provides, in relevant part, that each Arkansas school district must participate in a school choice program wherein students may apply to attend a school in a nonresident district, subject to certain limitations. Ark. Code Ann. § 6-18-1903. School districts may apply for exemptions from participating in school choice by producing evidence that the district has a genuine conflict under a federal court’s active and enforceable desegregation order or plan that explicitly limits the transfer of students between school districts. Ark. Code Ann. § 6-18-1906(a). The ADE 

 

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decides a school district’s application for an exemption from participating in school choice and the SBE hears appeals of the ADE’s decisions on the same. See id. ordered Junction City to participate in school choice for the 2018-19 school year. Junction City’s Motion for Declaratory Judgment seeks, by various alternative means, a finding that Junction City is prohibited from taking part in school choice and/or a declaration that portions of the 2017 Act are unconstitutional.

 

On June 15, 2018, the Court issued an order certifying Junction City’s constitutional challenge and sending notice to the Arkansas Attorney General’s Office of the same, pursuant to Federal Rule of Civil Procedure 5.1(b). (ECF No. 5). On June 21, 2018, the ADE and SBE filed a motion to intervene in this case for the limited purpose of opposing Junction City’s Motion for Declaratory Judgment. (ECF No. 13). On June 22, 2018, the Court held a status conference in which Junction City, the United States, and counsel from the Arkansas Attorney General’s Office participated. On July 3, 2018, the United States filed its response to Junction City’s Motion for Declaratory Judgment. (ECF No. 20). On July 9, 2018, the Court granted the ADE and SBE’s motion to intervene, thereby allowing those parties to intervene for the limited purpose of opposing Junction City’s Motion for Declaratory Judgment. (ECF No. 21). On July 20, 2018, the ADE and SBE filed their response in opposition to Junction City’s Motion for Declaratory Judgment. (ECF No. 26).

 

On July 19, 2018, Junction City filed the instant motion. Junction City seeks preliminary injunctive relief “restraining the [ADE] and the [SBE] from enforcing the [SBE’s] March 26, 2018 order . . . requiring [Junction City] to participate in the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of 2017” or, alternatively, “that the Court enjoin [Junction City] from participating in school choice pursuant to the SBE’s Order.” (ECF No. 22, ¶ 1). Junction City requests that injunctive relief remain in effect until an evidentiary hearing may be held on the 

 

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issue of whether Junction City’s desegregation obligations conflict with participation in school choice. Junction City also requests that, if injunctive relief is granted, that the Court waive the bond requirement. The ADE and SBE oppose the motion.

 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders. “The primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full, effective relief.” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984). It is well established that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original).

 

The determination of whether a preliminary injunction is warranted involves consideration of: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties . . . ; (3) the probability that [the] movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). Although no single factor in itself is dispositive, the probability of success on the merits is the most significant. Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013). “The burden of proving that a preliminary injunction should be issued rests entirely with the movant.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).

 

III. DISCUSSION 

The Court will first address whether Junction City has shown that it will be irreparably harmed absent an injunction, and then will turn to the other Dataphase factors, if necessary.

 

Although the probability of success on the merits is the predominant Dataphase factor, the Eighth Circuit has “repeatedly emphasized the importance of a showing of irreparable harm.” 

 

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Caballo Coal Co. v. Ind. Mich. Power Co., 305 F.3d 796, 800 (8th Cir. 2002). A party seeking injunctive relief must demonstrate that the injury is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm. Packard Elevator v. Interstate Commerce Comm’n, 782 F.2d 112, 115 (8th Cir. 1986). To carry its burden, a party must demonstrate that a cognizable danger of a future violation exists and is more than a mere possibility. See Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (citing Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931)). The failure to demonstrate irreparable harm is an independently sufficient ground to deny injunctive relief. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003).

 

Junction City argues that if students are allowed to transfer, it is unlikely those students will ever return to its district. Junction City claims that this will cause irreparable harm in that Junction City will suffer a segregative impact, as well as the financial impact caused by the loss of five students. At the preliminary injunction hearing, Junction City also argued that it could suffer irreparable harm by being required to participate in school choice until the Court rules on Junction City’s underlying Motion for Declaratory Judgment, thereby violating the Court’s previous orders during that period.

 

In response, the ADE and SBE argue that the harm Junction City cites is “certainly not irreparable.” (ECF No. 32, p. 19). The ADE and SBE assert that if Junction City ultimately prevails on its underlyingMotion for Declaratory Judgment, it is “entirely possible” that the Court would order that the students who transferred must return to Junction City and “order the restitution of the per-student funding that [Junction City] lost by virtue of the unconstitutional application of the school-choice law.” (ECF No. 32, p. 19). Furthermore, the ADE and SBE assert that the only harm that would result from a denial of preliminary injunctive relief would be the loss of five students and that—if Junction City ultimately prevailed—future losses would be prevented 

 

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through permanent injunctive relief. Finally, the ADE and SBE argue that “the five transfers at issue would change the ratio of black students by 0.4%.” (ECF No. 32, p. 19). According to the ADE and SBE, this change would be de minimis, no student would notice such a change, and no parent’s “perception of [Junction City’s] racial identity would be affected.” (ECF No. 32, p. 19).

 

Upon consideration, the Court finds that Junction City has failed to carry its burden of establishing that it will suffer irreparable harm absent preliminary injunctive relief. The Court is not persuaded that Junction City will suffer imminent financial harm if the approved student transfers leave the district. Robby Lowe, superintendent at Junction City, testified at the August 1, 2018, hearing that Junction City’s funding for the 2018-2019 school year is already in place. Likewise, Mr. Lowe testified that Junction City will not suffer any immediate financial harm as a result of the transfers. Taken together with the testimony offered by other superintendents in the other school desegregation cases before the Court, it becomes clear that Junction City will not suffer imminent financial harm from the loss of certain transferring students. In fact, Mr. Lowe testified that all of the students seeking transfers have not yet enrolled in Junction City. Although Mr. Lowe’s testimony suggests that Junction City might suffer financial harm in several years due to the reduction in students, this potential harm is too far removed from the present to support a finding of irreparable harm. See Rogers, 676 F.2d at 1214 (stating that a preliminary injunction “may not be used simply to eliminate a possibility of a remote future injury”).

 

Moreover, the Court is not convinced that the loss of certain students, in and of itself, constitutes irreparable harm to Junction City. As previously mentioned, none of the students seeking transfer have enrolled in Junction City. Moreover, Junction City cites no authority supporting this proposition, and the Court is unaware of any. Absent any such authority, the Court cannot find that Junction City will suffer irreparable harm solely from the loss of certain students. 

 

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The Court is also unpersuaded by Junction City’s argument that it will suffer irreparable harm by being required to participate in school choice until the Court rules on the district’s underlying Motion for Declaratory Judgment. At the preliminary injunction hearing, Junction City argued that if the Court were to eventually rule in Junction City’s favor on the underlying Motion for Declaratory Judgment, the district will have violated the terms of the Court’s orders by participating in school choice in the meanwhile. To be fair, this could constitute harm in certain circumstances. However, this notion is predicated on the idea that the Court will eventually grant Junction City’s Motion for Declaratory Judgment. If, on the other hand, the Court denies the instant motion and eventually denies Junction City’s Motion for Declaratory Judgment, Junction City will not have suffered any harm from participating in school choice, as the Court will have determined that the district may do so without violating the Court’s orders. It is well established that irreparable harm must be certain and cannot be speculative. See S.J.W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 779 (8th Cir. 2012) (“Speculative harm does not support a preliminary injunction.”). This argument, at this point, is too speculative, as the mere possibility of harm is inadequate to support a finding of irreparable harm.

 

In sum, the Court finds that Junction City has not satisfied its burden of making a clear showing that it would suffer irreparable harm absent preliminary injunctive relief. Mazurek, 520 U.S. at 972. Accordingly, the Court need not proceed to the remaining Dataphase factors, as failure to show irreparable harm is an independently sufficient ground to deny injunctive relief.2 Watkins, 346 F.3d at 844.

 

2 The Court also finds that Junction City has not satisfied its burden to obtain a temporary restraining order, as the Dataphase factors are also used to determine whether to issue a temporary restraining order. See Williams v. Silvey, No. 4:09-cv-211-FRB, 2009 WL 1920187, at *1 (E.D. Mo. July 1, 2009) (applying the Dataphase factors in denying a motion for a temporary restraining order). Thus, the Court’s analysis for whether to grant a request for a temporary restraining order is the same as for a preliminary injunction. 

 

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IV. CONCLUSION

For the foregoing reasons, the Court finds that Junction City’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 22) should be and hereby is DENIED.

 

IT IS SO ORDERED, this 8th day of August, 2018.

/s/ Susan O. Hickey 

Susan O. Hickey 

United States District Judge 

 

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Camden-Fairview’s Motion for Temporary Restraining Order, Preliminary Injunction DENIED​

Posted By Arkansas Learns, Wednesday, August 8, 2018
Updated: Wednesday, August 8, 2018

Case No. 1:88-cv-1142

 

IN THE UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF ARKANSAS 

EL DORADO DIVISION

 

LARRY MILTON, et al. PLAINTIFFS

 

v

 

MIKE HUCKABEE, et al. DEFENDANTS 

 

ORDER

 

Before the Court is the Camden-Fairview School District’s (“Camden-Fairview”) Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 284). Plaintiffs have filed a response in support of the motion.1 (ECF No 287). A response in opposition to the motion has been filed by the Governor of the State of Arkansas, the Arkansas Department of Education (“ADE”), the Arkansas State Board of Education (“SBE”), and the Members of the Arkansas State Board of Education (collectively, “State Defendants”). (ECF No. 291). Camden-Fairview has filed a reply. (ECF No. 294). On August 1, 2018, the Court held a hearing on the matter. The Court finds this matter ripe for consideration.

 

1 In their response, Plaintiffs state that they join Camden-Fairview in the instant motion, but also independently move for a temporary restraining order or preliminary injunction enjoining Camden-Fairview from participating in school choice. However, Plaintiffs have not briefed the issue and, therefore, the Court cannot consider Plaintiffs’ independent request for injunctive relief. See Local Rule 7.2(e) (providing that motions for preliminary injunctions shall not be considered unless accompanied by a separate brief). Accordingly, the Court will simply consider the instant motion to be a joint motion for injunctive relief.

 

I. BACKGROUND

 

Before proceeding to the merits of the instant motion, the Court finds it necessary to provide a brief overview of this litigation. On December 16, 1988, Plaintiffs—a group of African-Americans residing in Ouachita County, Arkansas—filed this action on behalf of their school-aged 

 

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children against State Defendants; the Board of Directors of the Camden Arkansas Housing Authority; the City of Camden, Arkansas; the Board of Education of the Camden, Arkansas School District; the Camden, Arkansas Fairview School District; and the Board of Education of the Harmony Grove School District. Plaintiffs’ Complaint alleged that Defendants acted in concert to deny African-American children equal educational opportunities by establishing, maintaining and perpetuating racially discriminatory school systems. Among other forms of relief, Plaintiffs sought an order consolidating the three defendant school districts or an effective desegregation plan.

 

On October 16, 1990, the Camden School District and Fairview School District were consolidated. On November 27, 1990, the Court entered a consent order (hereinafter the “Milton Order”) which provided, in pertinent part, that:

 

Harmony Grove shall maintain an open admission policy in regard to non-resident black students. Harmony Grove shall not permit the transfer of white students from Fairview into the district without the written permission of Fairview. Acceptance of transfer students by Harmony Grove is subject to existing space and transfer limitations. Harmony Grove will also refrain from engaging in any other act or conduct tending directly or indirectly to have a segregative impact in the Fairview School District. Any student transferring to Harmony Grove in compliance with this order and other legal requirements will be immediately eligible for all school activities without any of the limitations imposed by A.C.A. § 6-18-206.

 

(ECF No. 262-1, p. 2). The Milton Order further states as follows:

 

The consolidated Camden-Fairview School District and the Harmony Grove School District . . . are desirous of avoiding further litigation and controversy. While both of these districts are separate and autonomous and intend to operate independently in exercising governmental authority, these two districts agree that further costly litigation can be avoided by inter-district agreements. These agreements include but are not limited to the following:

 

1. Both school districts shall refrain from adopting student assignment plans or programs that have an inter-district segregative effect on either district. 

 

Id. at 3. The Milton Order further states that this Court “will retain jurisdiction to supervise all

 

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aspects of this and subsequent orders of this Court until such time as this Court issues a declaration of unitary status.” Id. 

On May 8, 1991, the Court issued an order tentatively approving a settlement agreement between Plaintiffs, Camden-Fairview and Defendants. (ECF No. 220). The Court entered a consent order declaring Camden-Fairview unitary in status on February 1, 2002. (ECF No. 254). The consent order further provided that State Defendants, the City of Camden, the Housing Authority of Camden, Harmony Grove School District, and Camden-Fairview had complied with the obligations imposed by the 1991 settlement agreement and court orders and dismissed them from the suit with prejudice.

 

On December 14, 2009, an action was removed to this Court from the Circuit Court of Ouachita County, Arkansas, alleging that a student at Camden-Fairview was denied permission to transfer to Harmony Grove High School in violation of the Fourteenth Amendment of the United States Constitution, the Arkansas Constitution and Arkansas common law. See Lancaster v. Guess, Case No. 1:09-cv-1056. The parties to the Lancaster action later entered into a settlement agreement and jointly moved to dismiss, which was granted by the Court on July 26, 2010 (hereinafter the “Lancaster Order”). (ECF No. 262-5). The Lancaster Order states that the Court retains jurisdiction of the case for the sole purpose of enforcing the parties’ settlement agreement; as well as for the purpose of enforcing its orders in the present action.

 

On May 4, 2018, Camden-Fairview filed a Motion for Declaratory Judgment, or Alternatively, for Clarification of Previous Orders, or Alternatively, for Modification of Previous Orders (hereinafter “Motion for Declaratory Judgment”). (ECF No. 262). In that motion, Camden-Fairview states that it is still subject to the obligations imposed by the Milton and Lancaster Orders. Accordingly, Camden-Fairview states that it has a conflict with taking part in 

 

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school choice pursuant to the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of the Regular Session of 2017 (hereinafter the “2017 Act”).2 Camden-Fairview states further that the ADE and SBE have ordered Camden-Fairview to participate in school choice for the 2018-19 school year. Camden-Fairview’s Motion for Declaratory Judgment seeks, by various alternative means, a finding that Camden-Fairview is prohibited from taking part in school choice and/or a declaration that portions of the 2017 Act are unconstitutional. On May 17, 2018, Plaintiffs filed a response supporting Camden-Fairview’s Motion for Declaratory Relief. (ECF No. 264).

 

2 The 2017 Act provides, in relevant part, that each Arkansas school district must participate in a school choice program wherein students may apply to attend a school in a nonresident district, subject to certain limitations. Ark. Code Ann. § 6-18-1903. School districts may apply for exemptions from participating in school choice by producing evidence that the district has a genuine conflict under a federal court’s active and enforceable desegregation order or plan that explicitly limits the transfer of students between school districts. Ark. Code Ann. § 6-18-1906(a). The ADE decides a school district’s application for an exemption from participating in school choice and the SBE hears appeals of the ADE’s decisions on the same. See id.

 

On May 23, 2018, the Court issued an order certifying Camden-Fairview’s constitutional challenge and sending notice to the Arkansas Attorney General’s Office pursuant to Federal Rule of Civil Procedure 5.1(b). (ECF No. 269). On June 15, 2018, the ADE and SBE filed their response in opposition to Camden-Fairview’s Motion for Declaratory Relief. (ECF No. 276). On June 22, 2018, the Court held a status conference in which Camden-Fairview, Plaintiffs, and counsel from the Arkansas Attorney General’s Office participated.

 

On July 12, 2018, Camden-Fairview filed the instant motion. Camden-Fairview seeks injunctive relief “restraining the [ADE] and the [SBE] from enforcing the [SBE’s] March 26, 2018 order . . . requiring [Camden-Fairview] to participate in the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of 2017” or, alternatively, “that the Court enjoin [Camden-Fairview] from participating in school choice pursuant to the SBE’s Order.” (ECF No. 284, ¶ 1). Camden-Fairview requests that injunctive relief remain in effect until an evidentiary hearing may be held on the issue of whether Camden-Fairview’s desegregation obligations conflict with 

 

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participation in school choice. Camden-Fairview also requests that, if injunctive relief is granted, that the Court waive the bond requirement. On July 20, 2018, Plaintiffs filed a response in support of the instant motion. (ECF No. 287). State Defendants oppose the motion.

 

II. LEGAL STANDARD

Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders. “The primary function of a preliminary injunction is to preserve the status quo until, upon final hearing, a court may grant full, effective relief.” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984). It is well established that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original).

 

The determination of whether a preliminary injunction is warranted involves consideration of: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties . . . ; (3) the probability that [the] movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). Although no single factor in itself is dispositive, the probability of success on the merits is the most significant. Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013). “The burden of proving that a preliminary injunction should be issued rests entirely with the movant.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).

 

III. DISCUSSION

The Court will first address whether Camden-Fairview will be irreparably harmed absent an injunction, and then will turn to the other Dataphase factors, if necessary.

 

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Although the probability of success on the merits is the predominant Dataphase factor, the Eighth Circuit has “repeatedly emphasized the importance of a showing of irreparable harm.” Caballo Coal Co. v. Ind. Mich. Power Co., 305 F.3d 796, 800 (8th Cir. 2002). A party seeking injunctive relief must demonstrate that the injury is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm. Packard Elevator v. Interstate Commerce Comm’n, 782 F.2d 112, 115 (8th Cir. 1986). To carry its burden, a party must demonstrate that a cognizable danger of a future violation exists and is more than a mere possibility. See Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (citing Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931)). The failure to demonstrate irreparable harm is an independently sufficient ground to deny injunctive relief. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003).

 

Camden-Fairview argues that if students are allowed to transfer, it is unlikely those students will ever return to its district. Camden-Fairview claims that this will cause irreparable harm in that it will suffer a segregative impact, as well as the financial impact caused by the loss of fifteen students. At the preliminary injunction hearing, Camden-Fairview also argued that it could suffer irreparable harm by being required to violate the Milton and Lancaster Orders by participating in school choice until the Court rules on Camden-Fairview’s underlying Motion for Declaratory Judgment.

 

In response, State Defendants argue that the harm Camden-Fairview cites is “certainly not irreparable.” (ECF No. 291, p. 26). State Defendants assert that if Camden-Fairview were to ultimately prevail it is “entirely possible” that the Court would order that students that had transferred must return to Camden-Fairview and “order the restitution of the per-student funding that [Camden-Fairview] lost by virtue of the unconstitutional application of the school-choice

 

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law.” (ECF No. 291, p. 26). Furthermore, State Defendants assert that the only harm that would result from a denial of preliminary injunctive relief would be the loss of fifteen students and that—if Camden-Fairview ultimately prevailed—future losses would be prevented through permanent injunctive relief. Finally, State Defendants argue that the “difference a denial of injunctive relief [and, accordingly, the loss of fifteen students] would make is a mere 0.3% increase in the black percentage of its student body.” (ECF No. 291, p. 26). According to State Defendants, this change would be de minimis, no student would notice such a change, and no parent’s “perception of [Camden-Fairview’s] racial identity would be affected.” (ECF No. 291, p. 26).

 

Upon consideration, the Court finds that Camden-Fairview has failed to carry its burden of establishing that, absent preliminary injunctive relief, it will suffer irreparable harm. Specifically, the Court is not persuaded that Camden-Fairview will suffer imminent financial harm if the approved student transfers leave Camden-Fairview. Mark Keith, superintendent at Camden-Fairview, testified at the August 1, 2018, hearing that Camden-Fairview’s funding for the 2018-2019 school year is already in place. Likewise, Mr. Keith testified that Camden-Fairview will not suffer any immediate financial harm if it lost the fifteen students who are seeking transfers. Taken together with the testimony offered by other superintendents in the other school desegregation cases before the Court, it becomes clear that Camden-Fairview will not suffer imminent financial harm from the loss of certain transferring students. Although Mr. Keith’s testimony indicated that Camden-Fairview might suffer financial harm in the future due to the reduction in students, this potential harm is too far removed from the present to support a finding of irreparable harm. See Rogers, 676 F.2d at 1214 (stating that a preliminary injunction “may not be used simply to eliminate a possibility of a remote future injury”).

 

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Moreover, the Court is not convinced that the loss of certain students, in and of itself, constitutes irreparable harm to Camden-Fairview. Camden-Fairview cites no authority supporting this proposition, and the Court is unaware of any. Absent any such authority, the Court cannot find that Camden-Fairview will suffer irreparable harm solely from the loss of certain students.

 

The Court is also unpersuaded by Camden-Fairview’s argument that it will suffer irreparable harm by being required to participate in school choice until the Court rules on Camden-Fairview’s underlying Motion for Declaratory Judgment. At the preliminary injunction hearing, Camden-Fairview argued that if the Court were to eventually rule in Camden-Fairview’s favor on the Motion for Declaratory Judgment, it will have violated the terms of the Milton and Lancaster Orders by participating in school choice in the meanwhile. To be fair, this could constitute harm in certain circumstances. However, this notion is predicated on the idea that the Court will eventually grant Camden-Fairview’s Motion for Declaratory Judgment. If, on the other hand, the Court denies the instant motion and eventually denies Camden-Fairview’s Motion for Declaratory Judgment, Camden-Fairview will not have suffered any harm from participating in school choice, as the Court will have determined that the district may do so without violating the Milton and Lancaster Orders. It is well established that irreparable harm must be certain and cannot be speculative. See S.J.W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 779 (8th Cir. 2012) (“Speculative harm does not support a preliminary injunction.”). This argument, at this point, is purely speculative and the mere possibility of harm is inadequate to support a finding of irreparable harm.

 

In sum, the Court finds that Camden-Fairview has not satisfied its burden of making a clear showing that it would suffer irreparable harm absent injunctive relief. Mazurek, 520 U.S. at 972. Accordingly, the Court need not proceed to the remaining Dataphase factors, as failure to show 

 

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irreparable harm is an independently sufficient ground to deny injunctive relief.3 Watkins, 346 F.3d at 844.

 

3 The Court also finds that Camden-Fairview has not satisfied its burden to obtain a temporary restraining order, as the Dataphase factors are also used to determine whether to issue a temporary restraining order. See Williams v. Silvey, No. 4:09-cv-211-FRB, 2009 WL 1920187, at *1 (E.D. Mo. July 1, 2009) (applying the Dataphase factors in denying a motion for a temporary restraining order). Thus, the Court’s analysis for whether to grant a request for a temporary restraining order is the same as for a preliminary injunction. 

 

IV. CONCLUSION 

For the foregoing reasons, the Court finds that Camden-Fairview’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 284) should be and hereby is DENIED. 

 

IT IS SO ORDERED, this 8th day of August, 2018. 

/s/ Susan O. Hickey 

Susan O. Hickey 

United States District Judge 

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Hope School District’s Motion for Temporary Restraining Order, Preliminary Injunction DENIED

Posted By Arkansas Learns, Wednesday, August 8, 2018
Updated: Wednesday, August 8, 2018

 

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS 

TEXARKANA DIVISION

 

ROSIE L. DAVIS, et al. PLAINTIFFS

 

v. Case No. 4:88-cv-4082

 

WILLIAM DALE FRANKS, et al. DEFENDANTS 

ARKANSAS DEPARTMENT OF EDUCATION and 

ARKANSAS STATE BOARD OF EDUCATION INTERVENORS 

 

ORDER

 

Before the Court is the Hope School District’s (“Hope”) Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 150). Plaintiffs have filed a response in support of the motion.1 (ECF No 155). The Arkansas Department of Education and the Arkansas State Board of Education (the “ADE and SBE”) have filed a response in opposition. (ECF No. 161). Hope has filed a reply. (ECF No. 164). On August 1, 2018, the Court held a hearing on the matter. The Court finds this matter ripe for consideration.

 

1 In their response, Plaintiffs state that they join Hope in the instant motion, and also independently move for a temporary restraining order or preliminary injunction enjoining Hope from participating in school choice. However, Plaintiffs have not briefed the issue and, therefore, the Court cannot consider Plaintiffs’ independent request for preliminary injunctive relief. See Local Rule 7.2(e) (providing that motions for preliminary injunctions shall not be considered unless accompanied by a separate brief). Accordingly, the Court will simply consider the instant motion to be a joint motion for injunctive relief. 

 

I. BACKGROUND

 

On August 5, 1988, this case was filed by African American individuals who were employed by or were parents of students who attended the Hope Public School District No. 1A in Hope, Arkansas. Plaintiffs sought to redress alleged racial discrimination regarding Hope’s treatment of African American students and faculty. On November 16, 1989, the Court dismissed 

 

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the case with prejudice subject to the terms of a consent decree entered into by the parties (hereinafter the “Davis Decree”). (ECF Nos. 37, 38). The Davis Decree provided, inter alia, that:

 

[I]t is the intent of this Decree to remedy any past discrimination based upon race and to prevent any like discrimination from occurring in the future. Although this action is brought on behalf of named black individual pupils and staff, the parties hereby agree that this Decree shall be equally applied to all such students and staff now and hereafter within the Hope School District No. 1A . . .

 

The Court, by consent of the parties, therefore enjoins, forbids and restrains the defendants from hereinafter engaging in any policies, practices, customs or usages of racial discrimination in any of its school operations including, but not limited to, faculty assignments, student assignments, and the treatment of black and other minority pupils within the school system . . .

 

The Court shall have continuing jurisdiction of this Consent Decree in order to [e]nsure compliance with the spirit and terms of this Decree. 

(ECF No. 38, ¶ 3, 4, 21). In dismissing the case, the Court retained jurisdiction to reopen this action upon cause shown that the settlement had not been completed and that further litigation is necessary. (ECF No. 37).

 

On May 14, 2018, Hope filed a Motion for Declaratory Judgment, or Alternatively, for Clarification of Previous Orders, or Alternatively, for Modification of Previous Orders (hereinafter “Motion for Declaratory Judgment”). (ECF No. 129). In that motion, Hope states that it is still subject to the obligations imposed by the Davis Decree. Accordingly, Hope asserts that it has a conflict with taking part in school choice pursuant to the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of the Regular Session of 2017 (hereinafter the “2017 Act”).2 Hope states further that the ADE and SBE have ordered Hope to participate in school choice for the 2018-19 school year. Hope’s Motion for Declaratory Judgment seeks, by various alternative

 

2 The 2017 Act provides, in relevant part, that each Arkansas school district must participate in a school choice program wherein students may apply to attend a school in a nonresident district, subject to certain limitations. Ark. Code Ann. § 6-18-1903. School districts may apply for exemptions from participating in school choice by producing evidence that the district has a genuine conflict under a federal court’s active and enforceable desegregation order or plan that explicitly limits the transfer of students between school districts. Ark. Code Ann. § 6-18-1906(a). The ADE decides a school district’s application for an exemption from participating in school choice and the SBE hears appeals of the ADE’s decisions on the same. See id. 

 

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means, a finding that Hope is prohibited from taking part in school choice and/or a declaration that portions of the 2017 Act are unconstitutional.

 

On May 23, 2018, the Court issued an order certifying Hope’s constitutional challenge and sending notice to the Arkansas Attorney General’s Office of the same, pursuant to Federal Rule of Civil Procedure 5.1(b). (ECF No. 29). On June 15, 2018, the ADE and SBE filed a motion to intervene in this case for the limited purpose of opposing Hope’s Motion for Declaratory Judgment. (ECF No. 142). On June 22, 2018, the Court held a status conference in which Hope, Plaintiffs, and counsel from the Arkansas Attorney General’s Office participated. On July 2, 2018, the Court granted the ADE and SBE’s motion to intervene, thereby allowing those parties to intervene for the limited purpose of opposing Hope’s Motion for Declaratory Judgment. (ECF No. 148). On July 16, 2018, the ADE and SBE filed their response in opposition to Hope’sMotion for Declaratory Judgment. (ECF No. 149).

 

On July 19, 2018, Hope filed the instant motion. Hope seeks preliminary injunctive relief “restraining the [ADE] and the [SBE] from enforcing the [SBE’s] March 26, 2018 order . . . requiring Hope to participate in the Arkansas Public School Choice Act of 2015, as amended by Act 1066 of 2017” or, alternatively, “that the Court enjoin Hope from participating in school choice pursuant to the SBE’s Order.” (ECF No. 150, ¶ 1). Hope requests that injunctive relief remain in effect until an evidentiary hearing may be held on the issue of whether Hope’s desegregation obligations conflict with participation in school choice. Hope also requests that, if injunctive relief is granted, that the Court waive the bond requirement. On July 20, 2018, Plaintiffs filed a response in support of the instant motion. The ADE and SBE oppose the motion. 

 

II. LEGAL STANDARD 

 

Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders. “The primary function of a preliminary injunction is to preserve the status quo 

 

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until, upon final hearing, a court may grant full, effective relief.” Ferry-Morse Seed Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984). It is well established that “a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original).

 

The determination of whether a preliminary injunction is warranted involves consideration of: “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties . . . ; (3) the probability that [the] movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). Although no single factor in itself is dispositive, the probability of success on the merits is the most significant. Barrett v. Claycomb, 705 F.3d 315, 320 (8th Cir. 2013). “The burden of proving that a preliminary injunction should be issued rests entirely with the movant.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).

 

III. DISCUSSION

 

The Court will first address whether Hope has shown that it will be irreparably harmed absent an injunction, and then will turn to the other Dataphase factors, if necessary.

 

Although the probability of success on the merits is the predominant Dataphase factor, the Eighth Circuit has “repeatedly emphasized the importance of a showing of irreparable harm.” Caballo Coal Co. v. Ind. Mich. Power Co., 305 F.3d 796, 800 (8th Cir. 2002). A party seeking injunctive relief must demonstrate that the injury is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm. Packard Elevator v. Interstate Commerce Comm’n, 782 F.2d 112, 115 (8th Cir. 1986). To carry its burden, a party must demonstrate that a cognizable danger of a future violation exists and is more than a mere possibility. See Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (citing Connecticut v. 

 

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Massachusetts, 282 U.S. 660, 674 (1931)). The failure to demonstrate irreparable harm is an independently sufficient ground to deny injunctive relief. Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003).

 

Hope argues that if students are allowed to transfer, it is unlikely those students will ever return to Hope. Hope claims that this will cause irreparable harm in that Hope will suffer a segregative impact, as well as the financial impact caused by the loss of sixty-nine students.3 At the preliminary injunction hearing, Hope also argued that it could suffer irreparable harm by being required to participate in school choice until the Court rules on Hope’s underlying Motion for Declaratory Judgment, thereby violating the Davis Decree during that period.

 

3 Although the instant motion states that sixty-nine students seek to leave Hope pursuant to school choice, Hope stated in the August 1, 2018, hearing that seventy students sought a transfer, and that twenty-three of those students were accepted by another school district.

 

In response, the ADE and SBE argue that the harm Hope cites is “certainly not irreparable.” (ECF No. 116, p. 22). The ADE and SBE assert that if Hope ultimately prevails on its underlying Motion for Declaratory Judgment, it is “entirely possible” that the Court would order that the students who transferred must return to Hope and “order the restitution of the per-student funding that Hope lost by virtue of the unconstitutional application of the school-choice law.” (ECF No. 116, p. 22). Furthermore, the ADE and SBE assert that the only harm that would result from a denial of preliminary injunctive relief would be the loss of sixty-nine students and that—if Hope ultimately prevailed—future losses would be prevented through permanent injunctive relief. Finally, the ADE and SBE argue that the “difference a denial of injunctive relief [and, accordingly, the loss of sixty-nine students] would make is a less than 5% increase in the black percentage of its student body.” (ECF No. 116, p. 22). According to the ADE and SBE, this change would be de minimis, no student would notice such a change, and no parent’s “perception of Hope’s racial identity would be affected.” (ECF No. 116, p. 22). 

 

Case 4:88-cv-04082-SOH Document 168 Filed 08/08/18 Page 5 of 7 PageID #: 1896 

6 

 

Upon consideration, the Court finds that Hope has failed to carry its burden of establishing that it will suffer irreparable harm absent preliminary injunctive relief. The Court is not persuaded that Hope will suffer imminent financial harm if the approved student transfers leave Hope. Bobby Hart, superintendent at Hope, testified at the August 1, 2018, hearing that Hope’s funding for the 2018-2019 school year is already in place. Likewise, Mr. Hart testified that Hope will not suffer any immediate financial harm. Taken together with the testimony offered by other superintendents in the other school desegregation cases before the Court, it becomes clear that Hope will not suffer imminent financial harm from the loss of certain transferring students. Although Mr. Hart’s testimony suggests that Hope might suffer financial harm in several years due to the reduction in students, this potential harm is too far removed from the present to support a finding of irreparable harm. See Rogers, 676 F.2d at 1214 (stating that a preliminary injunction “may not be used simply to eliminate a possibility of a remote future injury”).

 

Moreover, the Court is not convinced that the loss of certain students, in and of itself, constitutes irreparable harm to Hope. Hope cites no authority supporting this proposition, and the Court is unaware of any. Absent any such authority, the Court cannot find that Hope will suffer irreparable harm solely from the loss of certain students.

 

The Court is also unpersuaded by Hope’s argument that it will suffer irreparable harm by being required to participate in school choice until the Court rules on Hope’s underlying Motion for Declaratory Judgment. At the preliminary injunction hearing, Hope argued that if the Court were to eventually rule in Hope’s favor on the underlying Motion for Declaratory Judgment, Hope will have violated the terms of the Davis Decree by participating in school choice in the meanwhile. To be fair, this could constitute harm in certain circumstances. However, this notion is predicated on the idea that the Court will eventually grant Hope’s Motion for Declaratory Judgment. If, on the other hand, the Court denies the instant motion and eventually denies Hope’s 

 

Case 4:88-cv-04082-SOH Document 168 Filed 08/08/18 Page 6 of 7 PageID #: 1897 

7 

 

Motion for Declaratory Judgment, Hope will not have suffered any harm from participating in school choice, as the Court will have determined that Hope may do so without violating the Davis Decree. It is well established that irreparable harm must be certain and cannot be speculative. See S.J.W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771, 779 (8th Cir. 2012) (“Speculative harm does not support a preliminary injunction.”). This argument, at this point, is too speculative, as the mere possibility of harm is inadequate to support a finding of irreparable harm.

 

In sum, the Court finds that Hope has not satisfied its burden of making a clear showing that it would suffer irreparable harm absent preliminary injunctive relief. Mazurek, 520 U.S. at 972. Accordingly, the Court need not proceed to the remaining Dataphase factors, as failure to show irreparable harm is an independently sufficient ground to deny injunctive relief.4 Watkins, 346 F.3d at 844.

 

4 The Court also finds that Hope has not satisfied its burden to obtain a temporary restraining order, as the Dataphase factors are also used to determine whether to issue a temporary restraining order. See Williams v. Silvey, No. 4:09-cv-211-FRB, 2009 WL 1920187, at *1 (E.D. Mo. July 1, 2009) (applying the Dataphase factors in denying a motion for a temporary restraining order). Thus, the Court’s analysis for whether to grant a request for a temporary restraining order is the same as for a preliminary injunction. 

 

IV. CONCLUSION

 

For the foregoing reasons, the Court finds that Hope School District’s Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 150) should be and hereby is DENIED. 

 

IT IS SO ORDERED, this 8th day of August, 2018.

/s/ Susan O. Hickey 

Susan O. Hickey 

United States District Judge 

 

Case 4:88-cv-04082-SOH Document 168 Filed 08/08/18 Page 7 of 7 PageID #: 1898 

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LRSD: Power of Us vs. Priority of Them

Posted By Arkansas Learns, Wednesday, August 8, 2018
Updated: Thursday, September 6, 2018

Who will take responsibility?

Of 995 Arkansas public schools, only the Division of Youth Services (2%) scored worse on ACT Aspire Math readiness than the Little Rock School District's (LRSD) Hall High School (3.9%). (State Average: 47%; LRSD Average: 36%)

Of 998 Arkansas public schools, only Arkansas School for the Deaf Elementary (8%) and Division of Youth Services (4%) scored worse on ACT Aspire English readiness than LRSD Hall High School (18%). (State Average: 70%; LRSD Average: 58%)

Of 994 Arkansas public schools, the bottom three scorers in ACT Aspire Science were LRSD Hall High School, LRSD J.A. Fair High School, and Dollarway High School, all with 4% meeting readiness and all under State control. (State Average: 40%; LRSD Average: 29%)

Of 995 Arkansas public schools, LRSD Hall High School was 987th (10%) and LRSD Fair High School was 989th (9%) in percentage of students meeting readiness in Reading on the ACT Aspire. (Arkansas Average: 41%; LRSD Average: 32%)

We tried to find a silver lining in growth, but Hall declined in Math (-.2 points), English (-2 points) and Reading (-1 point), while improving less than +.7 points in Science.

Perhaps most telling, 27% of Hall's core teachers (Math, Science, Social Studies, English Language Arts, Special Education) were absent ten or more days in the first semester of 2017. In the third quarter, 50% of core teachers were absent five or more days.

Triggered by six schools in Academic Distress, in January 2015, the Little Rock School District was taken over by 5-4 vote of the State Board of Education. Three-and-a-half years later, including over two under the same superintendent, here is the latest academic performance and growth of those original six schools, as well as the overall district:

Subject  Arkansas  LRSD  Baseline Cloverdale  Henderson  Fair  Hall  McClellan 
 Math % Ready (Rank of 995)  47%  36%  25% (847)  11% (964)  17% (939)  5% (990)  3.9% (994)   7% (987)
 Math Growth/Decline (Rank of 995)  -0.16  -1
(166 of 262)
 -15 (954)  -5 (771)  -1 (539)  +0.2 (451)  -0.2 (474)  +0.3 (437)
                 
 English % Ready (Rank of 998)  70%  58%  44% (954)  42% (964)  51% (896)  25% (992)  18% (996)  27% (991)
 English Growth/Decline (Rank of 998)  +0.2  0
(158 of 262)
 -6 (873)  -2 (679)  -2 (664)  -4 (790)  -2 (697)  +5 (166)
                 
 Science Ready (Rank of 994)   40%  29%  42% (964)  13% (946)  12% (961)  4% (993)  4% (992)  8% (982)
 Science Growth/Decline (Rank of 994)  -0.7  -1
(143 of 262)
 -5 (814)  -2 (615)  -3 (681)  -1 (501)  +1 (353)  +0.06 (406)
                 
 Reading % Ready (Rank of 995)  41%  32%  12% (972)  17% (936)  19% (913)  9% (989)  10% (987)  12% (973)
 Reading Growth/Decline (Rank of 995)  +0.26

 0
(160 of 262)

 -4 (751)  -1 (570)  -4 (747)  -5 (812)  -1 (578)  -2 (645)

 

The only positive academic news among the schools or even district-wide, in either performance or growth, was:

  • +5 English Growth at McClellan (166 of 998 schools in Arkansas)
  • +1 Science Growth at Hall
  • +0.3 Math Growth at McClellan
  • +0.2 Math Growth at Fair
  • +0.06 Science Growth at McClellan

Conversely, all of the other formerly Academic Distress schools and the overall district stayed the same or declined in all other subject areas, led by Baseline's 15 point drop in Math, 6 point drop in English, 5 point drop in Science, and 4 point drop in Reading.

Truly student-focused education demands urgency, with the best interests of students immediately prioritized over self interests of adults.

Sources

http://www.officeforeducationpolicy.org/arkansas-school-data-act-aspire

https://v3.boardbook.org/Public/PublicItemDownload.aspx?ik=42395912

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Welcome to the Neighborhood, Dr. McNulty

Posted By Arkansas Learns, Tuesday, August 7, 2018
Updated: Tuesday, August 7, 2018
Just one month on the job, Pulaski County Special School District Superintendent Dr. Charles McNulty has received his first John Walker federal lawsuit. 98-page Beasley v. McNulty attached.

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Best Interests of Students: Parents v. School Districts

Posted By Arkansas Learns, Monday, August 6, 2018
Updated: Tuesday, August 14, 2018

[WORK IN PROGRESS]

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.

 

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When Districts Fail Students, Cry Race When They Dare to Leave

Posted By Arkansas Learns, Friday, July 27, 2018
Updated: Friday, July 27, 2018

1 F
8 Ds
4 Cs
0 Bs
1 A

On the State’s most recent A-F grades for public schools, the 14 schools among the four districts seeking to exempt from the State’s law on inter-district school choice achieved a cumulative 1.43 GPA.

Camden Fairview 1.4
Hope 1.6
Junction City 1.0
Lafayette County 1.5

And yet, Allen P. Roberts, PA, lawyers for the four districts, will go to U.S. District Judge Susan O. Hickey’s Court in El Dorado at 9:30 a.m. on Wednesday, August 1st and accuse parents of being motivated by race in seeking transfer from their resident districts. Nevemind that their districts have failed and are failing their children academically. In Roberts’ increasingly shrinking, isolated world, defense of government monopolies’ racial percentages trumps equal opportunity for all every time.

Just two weeks before the start of school, Roberts et al., aided by John Walker, are seeking Temporary Restraining Orders to halt previously approved transfers. Whether or not the TROs are granted should depend on who would be hurt the most if the transfers are allowed or halted. The math on that should be easy. If the transfers are not stopped, only the resident districts could conceivably be “hurt.” While districts will eventually lose the transferring students’ state funding, they will retain 100% of local funding, so their per pupil spend will actually go up. Conversely, if the TROs are granted, the parents, students and the receiving districts that planned for their enrollment will be hurt.

Here’s how each school performed:

Fairview Primary K-1: C (68.46)
Ivory Primary 2-3: C (67.7)
Camden Fairview Intermediate 4-5: D (59.86)
Camden Fairview Middle 6-8: D (62.31)
Camden Fairview High 9-12: D (60.43)

Clinton Primary K-4: D (64.65)
Beryl Henry Elementary 5-6: C (68.22)
Garland Learning Center P-8: A (82.58)
Yeager Middle 7-8: D (60.96)
Hope High 9-12: F (50.44)

Lafayette County Elementary: D (62.65)
Lafayette County High 7-12: D (59.05)

Junction City Elementary K-6: D (64.99)
Junction City High 7-12: C (65.38)

May Judge Hickey rule on the very narrow issue - do the districts’ ancient federal orders, none of which contemplated inter-district school choice, conflict with State law? Or do they not? The liberty of families and academic opportunity of students await.

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To Go Forward, Pine Bluff Must Prioritize Students

Posted By Arkansas Learns, Saturday, July 21, 2018
Updated: Saturday, July 21, 2018

For Pine Bluff to not only halt its skid, but turn around and thrive, priority one must be its students. Here’s how its doing on that front, based on performance and growth in the state’s summative test, ACT Aspire.

Dollarway (Grades 3 - 10), 982

2015-16 Math 13%
2015-16 Reading 14%
2015-16 English 39%
2015-16 Science 9%

2016-17 Math 13% (0)
2016-17 Reading 9% (-5)
2016-17 English 42% (+3)
2016-17 Science 9% (0)

2017-18 Math 12% (-1)
2017-18 Reading 11% (+2)
2017-18 English 40% (-2)
2017-18 Science 8% (-1)

 

Pine Bluff (Grades 3 - 10), 3,648

2015-16 Math 20%
2015-16 Reading 17%
2015-16 English 42%
2015-16 Science 11%

2016-17 Math 20% (0)
2016-17 Reading 12% (-5)
2016-17 English 39% (-3)
2016-17 Science 16% (+5)

2017-18 Math 15% (-5)
2017-18 Reading 14% (+2)
2017-18 English 42% (+3)
2017-18 Science 12% (-4)

 

Watson Chapel (Grades 3 - 10), 2,582 Students

2015-16 Math 21%
2015-16 Reading 21%
2015-16 English 52%
2015-16 Science 17%

2016-17 Math 24% (+3)
2016-17 Reading 22% (+1)
2016-17 English 53% (+1)
2016-17 Science 18% (+1)

2017-18 Math 19% (-5)
2017-18 Reading 19% (-3)
2017-18 English 51% (-2)
2017-18 Science 16% (-2)

 

White Hall (Grades 3 - 10), 2,926 Students

2015-16 Math 51%
2015-16 Reading 42%
2015-16 English 74%
2015-16 Science 43%

2016-17 Math 54% (-3)
2016-17 Reading 46% (+4)
2016-17 English 79% (+5)
2016-17 Science 48% (+5)

2017-18 Math 49% (-5)
2017-18 Reading 46% (0)
2017-18 English 78% (-1)
2017-18 Science 45% (-3)

 

Declining this past year in 12 of 16 opportunities is not going forward. However, when the improvement rests with Dollarway (Reading) and Pine Bluff (Reading and English), it’s both encouraging for Pine Bluff as a whole and a wake up call for Watson Chapel and White Hall.

Talent drives economic development. And the biggest part of the talent pipeline is K-12 public education. Communities which prioritize the best interests of students over the self interests of adults will win. Those that don’t, won’t.

Go Forward Pine Bluff, and show the rest of Arkansas it can be done.

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