ALLEN P. ROBERTS, P.A. ATTORNEYS AT LAW

Allen P. Roberts Whitney F. Moore Camden Office Little Rock Office 325 Jefferson St. S.W. Telephone: (870) 836-5310 1818 N. Taylor St., Ste. B P.O. Box 280 Facsimile: (870) 836-9662 PMB 356 Camden, AR 71701 Little Rock, AR 72227 allen@aprobertslaw.com whitney@aprobertslaw.com

December 27, 2017 VIA REGULAR MAIL AND EMAIL (Oliver.Dillingham@arkansas.gov) Arkansas Department of Education Attn: Oliver Dillingham 4 Capitol Mall, Box 25 Little Rock, AR 72201

Re: Conflicts with Participation in the Public School Choice Act of 2015 as revised by Act 1066 of 2017 – Camden Fairview, El Dorado, Hope, Hot Springs, Junction City, and Lafayette County School Districts

Dear Mr. Dillingham:

Whitney Moore and I represent the following school districts: Camden Fairview School District, El Dorado School District, Hope School District, Hot Springs School District, Junction City School District, Lafayette County School District, and Texarkana Arkansas School District. In compliance with Act 1066 of 2017, which revised the Public School Choice Act of 2015, and specifically Ark. Code Ann. § 6-18-1906, I am writing to notify you that CFSD, EDSD, HSD, HSSD, JCSD, and LCSD are claiming a conflict with participating in school choice for the 2018-19 school year. TASD has elected not to claim a conflict with participating in school choice for the 2018-19 school year.

Ark. Code Ann. § 6-18-1906(a) requires the districts claiming a conflict with

participating in choice to submit “proof from a federal court to the Department of Education that the school district has a genuine conflict under an active desegregation order or active court-approved desegregation plan that explicitly limits the transfer of students between school districts.” The statute further states that proof shall contain “(A) documentation that the desegregation order or court-approved desegregation plan is still active and enforceable; and (B) documentation showing the specific language the school district believes limits its participation in the school choice provisions of this subchapter.”

Individual submissions containing the “proof” referenced in the statute are enclosed for

each district.

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In school choice litigation, the ADE has taken the position through the Attorney General that under the 2017 School Choice Act, the decision as to whether there is a conflict between a district’s federal court desegregation order and that district’s participation in school choice now rests with the ADE, rather than the issuing federal court. If indeed that is what the 2017 Act does, it is unconstitutional.

The United States Supreme Court has rejected attempts by state governors and

legislatures to substitute their judgment for that of federal courts on constitutional questions. That was the core teaching of a landmark Supreme Court case from Arkansas, Cooper v. Aaron, 358 U.S. 1 (1958). The holding in that case cannot be better stated than by quoting the opening paragraph of the opinion of a unanimous Court:

[T]his case . . . raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the [U.S.] Constitution. Specifically, it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483 . . . We reject these contentions.

Cooper, 358 U.S. at 4. As stated, the Arkansas General Assembly cannot through the 2017 Act vest the ADE with authority to interpret federal court desegregation orders.

Thank you very much.

Sincerely, /s/ Allen P. Roberts One of the attorneys for CFSD, EDSD, HSD, HSSD, JCSD, LCSD, and TASD

Enclosures cc: Elbert Harvey (elbert.harvey@arkansas.gov) Lori Freno (lori.freno@arkansas.gov)

Mark Keith, Superintendent Camden Fairview School District (via email only) Jim Tucker, Superintendent El Dorado School District (via email only)

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Bobby Hart, Superintendent Hope School District (via email only) Dr. Stephanie Nehus, Superintendent Hot Springs School District (via email only) Robby Lowe, Superintendent Junction City School District (via email only) Robert Edwards, Superintendent Lafayette County School District (via email only)

Dr. Becky Kesler, Superintendent Texarkana Arkansas School District(via email only)

EL DORADO

Whitney Moore and I represent El Dorado School District (EDSD) in Kemp, et al. v. Beasley, et al., Case No. ED-1048, U.S. Dist. Ct., W.D. Ark., El Dorado Division, and Townsend v. Watson, et al., Case No. 1:89-cv-1111, U.S. Dist. Ct., W.D. Ark., El Dorado Division. This is EDSD’s submission of proof of a conflict with participation in school choice under the Public School Choice Act of 2015 as revised by Act 1066 of 2017.

1. Claim of Conflict

EDSD has a genuine conflict with participating in school choice under active desegregation orders. These orders explicitly limit the transfer of students between school districts.

The Kemp case originated in 1964 as an action by black parents who alleged they were not allowed to enroll their school age children in EDSD due to their race. At the time the complaint was filed, EDSD was still operating a dual system, that is, the white students attended certain schools and the black students attended other, separate schools. EDSD operated this dual system post-Brown v. Board of Education by adopting a “freedom of choice” desegregation plan. The order entered in Kemp on August 2, 1971 prohibited further use of “freedom of choice” plans, specifically stating “All vestiges of ‘freedom of choice’ is eliminated and any further use prohibited.” EDSD has based its conflict with participation in school choice on the August 2, 1971 order. The Townsend case was filed in 1989 regarding, among other things, racial discrimination in staffing.

The United States District Court, Western District of Arkansas, Honorable Susan O. Hickey presiding, continues to exercise jurisdiction over the Kemp and Townsend cases, and in recent years the cases are have been treated as one, informally referred to as the El Dorado school desegregation case. The case is intra-district in that no other school districts are parties and the original complaint alleged segregative practices within EDSD. However, Judge Hickey, in the August 31, 2016 Order referenced below, specifically found that EDSD had a constitutional obligation to avoid taking any action the natural and probable consequence of which would be a segregative impact in EDSD. Judge Hickey also found that, if EDSD were to participate in school choice, the resulting inter-district movement of students between EDSD and surrounding districts would have a segregative impact in EDSD. Therefore, for purposes of the school choice acts, the distinction between the intra-district and inter-district origins of a particular case is not dispositive; instead the operative question is whether participation in school choice would have a segregative impact on a district with intra-district desegregation obligations based on its demographics and those of the districts surrounding it.

2. Documentation that the Desegregation Order is Still Active and Enforceable

EDSD submits the order entered in Kemp on August 31, 2016 (the “2016 Kemp Order”), which states in numbered paragraph 3: “EDSD has been and is subject to this

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Court’s supervision regarding an enforceable desegregation court order.” Additionally, in paragraph 6, the 2016 Kemp Order states: “The Court retains continuing jurisdiction and supervision pursuant to the Court’s August 2, 1971 Order.” Finally, in paragraph 13, the 2016 Kemp Order states: “The Court maintains continuing jurisdiction over this matter until it finds that EDSD should be released from Court supervision.” The August 2, 1971 Order is enclosed as well.

3. Documentation showing the specific language the school district believes limits its participation in the school choice provisions of Ark. Code Ann. 6-18-1901 et seq.

The order entered in Kemp on August 2, 1971 prohibited further use of “freedom

of choice” plans, specifically stating “All vestiges of ‘freedom of choice’ is eliminated and any further use prohibited.”

The 2016 Kemp Order notes the demographics of EDSD and its surrounding districts (see Order, ¶¶ 1-2) and makes the following findings:

8. EDSD has a continuing constitutional obligation to avoid taking any action the natural and probable consequence of which would be a segregative impact in EDSD. 9. Participation in the 2015 School Choice Act would allow inter-district movement of students between EDSD and surrounding districts. If allowed, based on the demographics of EDSD and the surrounding districts, such movement would have a segregative impact in EDSD. . . . 11. The 1971 Order is an enforceable desegregation court order regarding the effects of past racial segregation in student assignment. As such, the Order conflicts with participation in the 2015 School Choice Act, and EDSD appropriately declared its conflict with participating in the 2015 Act. That conflict means that EDSD is not a participant in or subject to the school choice transfers contemplated by the 2015 Act.

IN THE UNITED S"AfE5 DISTRICT COLq,?WESTERN D.IS?RICT OF ARKANSAS

EL DORADO DI1IISION

DOSSIE UAYUE NEMP, et al..

pta int ! ffs,

LEE ROY BEASI^EY, Et A1..

NO. ED - LO48

.Def,endants.

, gRDER

?his rnatter of 6chool desegregation for the XI Dorado SchooL

Dlstrict No, L5 of, (rnion County, Alkansas, is before the Courr

for fiDal deteminatioh of a plan for the op€lation of a lnitary,non-racial, .!on- discr lrninabry school system. The unlted statescoult of Appeal.s fo! the Ei.ghth circuit, En Banc, on tlay 4? L971,

in its order No. 20,507 remandcd the hatter to the District Courtfor f,urther considelation !n accoldanc€ with the guidellnes and

teachiogs of the unit'eat Sbates Suprohe Court in

llecklenburo Board of Education, _U.S._, Davis v. Board ofSchbol Conrnissioners of i4qbile County, _-U.S._; Nolth

Cdrolina State Board of Educatioo v. SvaE!, _ U.S._; anai

UcDanre} suFerintendent of SchooLs v. B.aa."-.lendered ApriL 20, 1971,

In conpliance ,,rj.th the judgdent and olale! of th€ appellatecourt, this Coult entered an orde! dated l.tay lO. l9?I. req,riringthe Board of Directors of the El Dorado school Distlict No. l5to file a pla! for the operatioD of its scbools lrhich would comply

with the guldeLines and teachiDgs of the taited St.tes Suprerle

Coult in lhe above-clted cases. The Court Lncluded lh its older

lIll]1

lll

Case 1:89-cv-01111-SOH Document 35-1 Filed 08/14/16 Page 1 of 7 PageID #: 36

. scheduled heali.ng on the school district,s propoeed pIarl for?hursday, July 15. ]97.i.. pursuadt to thia Court,6 order, tsheEL Dorado School Dj.strict No. 15 of Union County, Arkaneas, fi,leda report rrith the Court on June 15, I9?I, irhich included itsProposed plan fot future qpg16g1.a of the sclools ,,rithln theE.I Irorado School District effcctive with the comrencehent of thesihool year 1.97I_?2. Although this Court,s ordet of Uay tO, I97I,provided the plaihtiffs sha1l hive tirenty days to r€ply orother\rise tespond to the school district.s proposed pIan, no!-qsponse lras received or objectiors to the report of the defendabo tho coult was fited uorit Juty Il, 1971. two day6 prLor ro urascheduled heari.ng on the dcfenatant,a propoced p1an. ?he prlniar,yobjection of the plaintiffs is the closing of Fairview El.ernentarySchool. utj.Iization of wat6on Schqol fo! the Oth crad6 insteadof "full- fledged elehenrary Echool, and the leopening of ttolniDgStal and Carve! EleoeDtary SchooIB. The pfaintlffs contend thatthe ploposed actlon of the boald i6 raclally motivated or. lvillhave a,,raclal resuit.,.

oD JuIy 15, 197I. the Ccurt held an evidentlEry h€aring, Bystipulatioo of the palti€s and from records .received as exhLbits,lt vBE agreed and established th.t the ptopo6.d pLaD of theEchoo} district for the operation of th6 EI Dolado high schoolsthe junio! high schools comply vith the lederal standards analguidelines of the United Srateg Suprena Court iD tlre cases herein_above clted- I! lras further stipulated by the parties that thecEstihony ',{ould be lj.rnired ro the pr.opo6ed operatio4 of thenurnerous elehentary schools of the district conlnencing witsh the197.1.- 72 6chool year.

Fron the evidence aDd exhibits theroto, it iE established

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at the beginning of th€ l97o_?I sehool yeai there rrere a totatof 6,423 Eludents, 4,227 white sEudents and 2,196 b.lack studenEs,At the close of the school yc.! Hay 28, !g-l., ther€ were 6,f766tudents- In the elementury schools, faiivicu and wi,tron erj(iraLt-bIack vith 2g4 and I7l, rcal)e(!iv!Iy. No.Llr!,,.:rtL, t1!tt.tl )

Ileights, west l.toods and yocu:n elementary schools foi the Echoolyea! I9?0-7I were eithe! pledoninant.ly white or merefy,,tokenintegraCed". It is establish€d and admitted that the ope!ationof the oleE€Dtary school.6 for th6 year I9?O-ZI !ailed to comp_Iy

rrith the gqideJ.iDes and telchjDgs of th€ ,nore rec€nt Suplene

Court declsions -

fn recbgnitlon of the above Etst€d facts and asEuming itsresponsibillty as more definitely r€stated in Suap-n v, Charlotte_Mecklenburq Board_ of Educatton, supla, the school board consideledfive difJerent plan6 for the operatioD of the district,selemeDtaly schooIg. In consialeratiotr of the fiv6 proposeat plans,the school board scheduled and held a public meecing on June IO.1971,. pulsuant to the Irublic hearing and action of the Echoo]-

board in regular meeting June 14. 1971, Alcelnative pLan No, 5

was approved vJlth modification that Rock Island Elementary

Schoo]. be used iDstead of Watson llelnirltaly SchooL for the 6thGlade until an acceas street from Watson SchooL to U.S. HrghlrayNo. 82 of approxi-mately one_fourth mi.Ie be cohpleted by the Cityof EI Dolado, Failview. heretofore an al.I_blaek elehentary school,would be closed .nd u6ed as a dEy_care center for needy and

ihdlgent childr€n under school age. Mol,nirlg Sta!, formerly all_b.Iack, closed for the school yeaE I9?O_71 anat utilieed as theday-cale ceDcer .last ye6r. would be reopened for 6th G_ade assisn_nent \.rith 65 vhite and 45 btack stude!.Its. Carve!, a prevlously

Case 1:89-cv-01111-SOH Document 35-1 Filed 08/14/16 Page 3 of 7 PageID #: 38

all-bIack school, closed last year. would be reopened for Gth

Grade assignment with 75 white and 45 bLack sEuder,a".V

IE is established from the proposed plan offered by the

defendant school district rhat a cornbination pairing and zoning

is to be used to achieve the proposed results. fn order to carry

out the proposed plan the school district witl be required to

provide addlt.ional bus facilit,ies and to increase the utilization

of the existing busses.

At the conclusion of the hearing July 15, 19TI. the court

reserved decision and reguired the school board to further

consider tshe plan with a view of assigning aII six grades to each

of the eLementary schools inEtead of using certain elementary

schools for 6th grade assignment. fhe school board was directed

to furnish additional information concerning student assignment

and bus routes. the policy of 4freedom of choice,. used heretofore

was ellminaled. The school board was not reguired to establish

or utilize the principle of ,,racial- balance,,but may do so.

No school shall be racially identified. Neither would token

integration be accepted.

Pursuant to these directives of the Court order of JuIy 16,

1971. the school board filed its report wj.th the Court July 29,

]/ fhe 5th crade studente would be assigrnEE-Es-toffov"r-

crades 1 through 5 wllt be

Northvest 399

{Ly"- 59% black-white ratio3 B%- 62% b lack-white ratio33l- 67% black-,,rhite ratio

assigned the following schools;

3 37r 61% black-tn,hiEe r a Lio40"/"- 6 ffA bI ack-whi te ra t io4 L"t- 5y" black-whi. re ratio29%- 7 L% black-white ratio33y{6'l% black-white ratio46%- 54% black-white ratio4*t- 52% black-v/hite ratio

llorning StarCarverWatson .

III120r12

YocumWestwood

Souths ide

Jqurmil xeights 276Hugh .coodwin 426Retta Brourn 2A4

424260

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19?,1- tn effect the board proposes the sarne p.Lan submittedpleviolrsly witi nore dctail in the utilization of th. var.iouselernentary 6chools, the nanner aDd extent of bus siJlg 666 6u15)ta,justifi.cation for transferring the day_care school fron MorningSta! to Failvi€w, afford!n9 greater alld nore convenient eelvlcesuniet the dir€ction of the lJnion County 4_C Council. Inc., forday-car€ chiLdlen.

tlolll the record, lepolts to the court, ore teouE tesElhoDyand exhibits thereto, tbe Court concludes that for the I97L_726chool year thc proposed Alternative ptan No. 5, vlthout thenodificstion of tehporary use of Rock Island facilitles, uouldb€ the rllosE acccptabl,e plan of those consider€d by t}le Echoolboard. Whi]e it rrould be d€sirable if each of th€ el€nenralyschools could accorimodaee alL six glades, wilh the Location ofvarious schools designld a.d constructeal itr accordancc withhousiDg patterns under previous design for segregation, lraPpeals to be impracticable, tsad, ln lact,.beyo[d the reachof the school distriet _ftom a !€alistic vierrpolnt at !hl.s time.

Even though the Court concludes that the dist.ict erill notbe requireat to establi.sh arld naintaia a !acial balance. it isestablished Ehar th€ ovelal1 school ratio is apploximately 3S%black end 65,6 v,hlte. ?he Aftelnative plan No. 5 as being approveatby the Court has a minimum ratlo of 2g%.black _ 71% vrhite to amaxlmum rario of 48X black _ 52% !,hite. This appears to comportv,/i th th€ guidelines and teaclrings of .the Srrann v. Charlotte_M9cllenburq aoard of gdugatsiop, slpra, a4d other cited caseg bythe united states suplene courE April 20. 197I.

r? Is, THERIPoRE, CoNSIDERED, oRDERED A}ID ADJUDGED that thedefendant, EI Dolado School Dlstrict No. LS of Union county,

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ru

Alkansas, be and tshe sane is requiied to operate its various9chools of ehe Cistrict. as foll.ons:

1.. AIl vesEiges o! "freedom of choic€..2/any furthe! u6e prohibited.

2. The p]an of operation fo! the senior high 6choo]s,grades 10, tI and 12 approved by this Courts in its order onApril 9, 1959. vilt continue for the school year of, I9?t_72 and6ubsequent years, subject to the continuiDg jurLsdl,ction and

slrpervision of !hi s cour!,

3. The plan of oper:atioD for the Junior high school$,grades 7. I and 9, approved by this Court April 9. 1969, s6611contsilrue for the ensuing school year I97l_?2 and subsequeh! year6.aubJect to the continuing julisdictj.on anat supervislon of thisCourt -

4. T.he plan of operatloD for the elementary schools of theEI Dorado school District,.grades I through 6, for rl,le yearI97L-72, wrll be in accor:datlce rrith the Scliool District,s planNo. 5 to include the utifizarion of Watson as colltained therein.without the modification propo6ed by the Board fo! the temporaryuse of Rock fsland's facilities- ?he Boald l,,ill provide Che courtwith further report ol| the methods of assigbment. utiLization ofthe elernebtary sehools and the racla] complex at the end of theschool year, to include further consid€rati.on 6f pairing or othe!metho'rs thats will achieve the greatest \rtirization of the schoorfacilities in accordance l,irh the guidelines and teachinEs of,SwEnn, supra,

-2 r' ?hc Board may use Fstuctenr f6r _ -,rence" ei{pressed in "rrrinS_;;-ustudenr for assign,nenc, ir,i such nr"i.i.^""""r,"ir;:';::JIr:".onJ.y in the discretion of Lhebd i Fi6-^^* .. board .nd in Do way coosideied to

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is el-irninated and

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5. Pairviee Elementsary School mdy be used as a ,,Day_Care

Cente!'. in connecrion with ,,fhe conmunity Coorali.nated chIId c,are

Pro9!am" with the uolon county 4-c counci.r, rnc., El Dorado,

Arkansas, a€ proposed in the Board,s report to the Court JuIy 29,!./T97I.

IT IS EURTHER ORDERjD that the court maintains continuingjurisdiction aad supelvlsioD in accordance wj.th the dilectionsof the Suplene Court of tho Unttcd SEates aod th€ ,nandate ofthe United States Coutt of AppealE for the Eighth Circuit.

DATEDT August 2, L91L.

LNITED STA

l/ Rock rsland EIffitine as the Board deternines, \,riih lhe approval of lhe Cour!,

#

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION DOSSIE WAYNE KEMP, et al. PLAINTIFFS v. Civil No. ED-1048 LEE ROY BEASLEY, et al. DEFENDANTS and REV. FRANK TOWNSEND, et al. PLAINTIFFS v. Civil No. 89-cv-1111 LEE ROY BEASLEY, et al. DEFENDANTS

ORDER

Before the Court is the Motion for Declaratory Judgment filed by the El Dorado School

District (“EDSD”) Defendants. ECF No. 35. Plaintiffs have filed a response. (ECF No. 37).

On August 30, 2016, the Court held a hearing on the motion. The Court finds the matter ripe for

consideration.

Based on the motion and supporting brief of Defendants (ECF No. 35), the response and

brief filed by Plaintiffs (ECF Nos. 37, 38), the amici curiae letter from counsel representing the

McAuliffe family, the arguments of counsel and testimony of witnesses at the August 30, 2016

hearing, and other matters properly before the Court, the Court finds and concludes as follows:

FINDINGS OF FACT

1. El Dorado School District (EDSD) is a public school district operating in Union

County, Arkansas. Its 2015-16 total enrollment was 4,522 students. The 2015-16 enrollment

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was comprised of 2,220 black students (49.1%) and 2,302 non-black students (50.9%).

2. EDSD is bordered by school districts with enrollments comprised of substantially

higher percentages of non-black students, specifically Parkers Chapel and Smackover-Norphlet.

The 2015-16 total enrollment of Parkers Chapel was 787 and was comprised of 74 black students

(9.4%) and 713 non-black students (90.6%). The 2015-16 total enrollment of Smackover-

Norphlet was 1,160 and was comprised of 226 black students (19.5%) and 934 non-black

students (80.5%).

3. EDSD has been and is subject to this Court’s supervision regarding an

enforceable desegregation court order.

4. EDSD has never participated in a school choice program that allowed segregative

inter-district movement of students.

5. The testimony of former EDSD Superintendent Robert Watson, current EDSD

Superintendent Jim Tucker, and former Camden Fairview Superintendent and current Pulaski

County Superintendent Dr. Jerry Guess was that inter-district movement of students, such as that

permitted by the 2015 Act, would have a segregative impact on EDSD.

CONCLUSIONS OF LAW

6. The Court retains continuing jurisdiction and supervision pursuant to the Court’s

August 2, 1971 Order.

7. The Court has considered the Motion for Declaratory Judgment filed by

Defendants. ECF No. 35. Based on Defendants’ motion, Plaintiffs’ response, and the arguments

of counsel and testimony of witnesses at the August 30, 2016 hearing, the Court finds that the

motion is consistent with the Court’s previous orders. The Court further finds that the motion

should be and hereby is GRANTED.

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8. EDSD has a continuing constitutional obligation to avoid taking any action the

natural and probable consequence of which would be a segregative impact in EDSD.

9. Participation in the 2015 School Choice Act would allow inter-district movement

of students between EDSD and surrounding districts. If allowed, based on the demographics of

EDSD and the surrounding districts, such movement would have a segregative impact in EDSD.

10. The 2015 School Choice Act recognizes the command articulated in the

Supremacy Clause, U.S. CONST., art. VI, cl. 2, that the Constitution of the United States is the

supreme law of the land. The 2015 Act provides that “[i]f the provisions of this subchapter

conflict with a provision of an enforceable desegregation court order . . . regarding the effects of

past racial segregation in student assignment, the provisions of the order . . . shall govern.” ARK.

CODE ANN. 6-18-1906(a)(1).

11. The 1971 Order is an enforceable desegregation court order regarding the effects

of past racial segregation in student assignment. As such, the Order conflicts with participation

in the 2015 School Choice Act, and EDSD appropriately declared its conflict with participating

in the 2015 Act. That conflict means that EDSD is not a participant in or subject to the school

choice transfers contemplated by the 2015 Act.

12. Accordingly, the Arkansas State Board of Education’s July 15, 2016 order

granting the McAuliffe family’s school choice appeal (Doc. 35-15) is void.

13. The Court maintains continuing jurisdiction over this matter until it finds that

EDSD should be released from Court supervision.

IT IS SO ORDERED, this 31st day of August, 2016.

/s/ Susan O. Hickey

Susan O. Hickey United States District Judge

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