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Date: 09-30-2021

Case Style:

United States of America v. Arkansas Department of Educ.

Case Number: Case No: 19-1340 and No: 19-1342 and No: 19-1348 and No: 19-1349

Judge: Ralph R. Erickson

Court: United States Court of Appeals For the Eighth Circuit

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

St. Louis, MO. - Civil Rights Lawyer Directory


St. Louis, MO - Desegregation Consent lawyer represented defendant
with seeking modification of existing desegregation consent decrees.

A 1960’s court order required Junction City School District (“Junction City”)
to consolidate and integrate, but compliance with the order was halting and half-hearted and the school remained effectively segregated for years. In response to the
situation, the United States Department of Justice and Junction City entered a 1970
intradistrict consent decree requiring the reassignment of students on a non-racial and
non-discriminatory basis. The 1970 consent decree remains in effect. Under its
terms, Junction City is enjoined from maintaining segregated student assignments,
homerooms, activities, or bussing.
Hope School District No. 1A (“Hope”) entered an intradistrict consent decree
in 1990 to “remedy any past discrimination based upon race” and “prevent any like
discrimination from occurring in the future.” The consent decree enjoins Hope from
“engaging in any policies, practices, customs or usages of racial discrimination” in
any school operations. Hope must “maintain a unitary, racially nondiscriminatory
school system wherein all schools are effectively and equitably desegregated and
In 1993, Lewisville School District entered into an intradistrict consent decree
that now binds Lafayette County School District (“Lafayette County”). The consent
decree prohibits Lafayette County “from allowing a racially discriminatory
environment to exist within the school district” and requires the district to “maintain
a unitary, racially non-discriminatory school system wherein all schools are
effectively and equitably desegregated and integrated.” Lafayette County must also
maintain a desegregation and integration policy that “promotes pupil and staff
integration rather than . . . passive acceptance of desegregation between students of
all races.”
Camden-Fairview School District (“Camden-Fairview”) is bound by a 1990
interdistrict consent decree entered into by the Fairview School District (“Fairview”)
and the Harmony Grove School District (“Harmony Grove”). Paragraph 1(C) of the
1990 decree requires Harmony Grove to maintain an open admission policy for nonresident black students and forbids the transfer of white students from Fairview
without Fairview’s written permission. Both school districts must “refrain from
adopting student assignment plans or programs that have an interdistrict segregative
effect on either district” and “work cooperatively to create interdistrict polices and
programs to end the ravages of segregation.” In 2001, Camden-Fairview and
Harmony Grove moved the district court to grant unitary status but stated that the
provisions of paragraph 1(C) “shall remain in full force and effect to prevent future
‘white flight.’” The court granted the districts unitary status in 2002 but maintained
paragraph 1(C)’s restrictions. In 2010, the court found paragraph 1(C) still
The district court retained jurisdiction over all four cases to ensure “compliance
with the spirit and terms of” the decrees and to enforce its orders.
B. Changes in the Law
In 1989, Arkansas adopted the Arkansas School Choice Act of 1989 (“1989
Act”), which allowed children to apply to attend a nonresident school district. See
Ark. Code Ann. § 6–18–206 (repealed in 2013). The 1989 Act limited a student’s
ability to “transfer to a nonresident district where the percentage of enrollment for the
student’s race exceeds that percentage in his resident district.” Id. The law remained
in effect until 2013, when it was expressly repealed by the Arkansas Public School
Choice Act of 2013 (“2013 Act”). Ark. Code. Ann. § 6–18–1906 (2013). The 2013
Act allowed for students to transfer to nonresident school districts but did not bar
segregative transfers. Instead, the 2013 Act allowed school districts to declare
themselves exempt if participating in school choice would conflict with an existing
federal-court desegregation plan or order.
Two years later, Arkansas enacted the Public School Choice Act of 2015
(“2015 Act”), which eliminated a school district’s ability to declare itself exempt
from participating in school choice. Ark. Code. Ann. § 6–18–1906 (2015). Under
the 2015 Act, a district seeking an exemption was required to submit proof of an
active desegregation order or plan to the Arkansas Department of Education (“the
Department”). If a district submitted proof, the terms of the order or plan would
govern. In 2017, Arkansas amended the 2015 Act (“2017 Amendments”) to require
districts seeking exemptions to submit proof of a desegregation plan or order “that
explicitly limits the transfer of students between school districts.” Ark. Code. Ann.
§ 6–18–1906 (2017).
C. Current Litigation
Junction City, Hope, and Camden-Fairview applied for exemptions from school
choice each year from 2013 to 2017. Lafayette County took part in school choice for
the 2013-2014 school year but, after losing thirty non-black students to interdistrict
transfers, applied for an exemption due to segregative impact. All of the Districts
received exemptions from 2014 to 2017. The Districts applied for exemptions for the
2018-2019 school year but were denied. As a result, they were required to participate
in school choice. The Districts filed motions for declaratory judgment, clarification
of previous orders, or modification of previous orders. They argued that participating
in school choice would have a segregative impact and cause them to violate existing
desegregation orders.
After a hearing, the district court granted the Districts’ motions to modify the
consent decrees to prohibit segregative, interdistrict transfers. While CamdenFairview had been declared unitary, the court determined that the remaining
desegregation obligations of paragraph 1(C) allowed modification. The court found
that the repeal of the 1989 Act and the enactment of the 2017 Amendments were a
significant change in law. Based on their language and the context surrounding the
decrees’ adoption, the court determined that the decrees were intended to prohibit any
racial discrimination within the Districts. The court modified the consent decrees to
“explicitly prohibit the segregative inter-district transfer of students from [the
Districts] to other school districts, unless such a transfer is requested for education
or compassionate purposes and is approved by [the Districts’] school board[s] on a
case-by-case basis.” The Department appeals the district court’s modification orders.
II. Discussion
We review the district court’s decision to modify a consent decree for abuse of
discretion. Davis v. Hot Springs Sch. Dist., 833 F.3d 959, 963 (8th Cir. 2016). We
will find an abuse of discretion only where a court’s decision was based on erroneous
legal conclusions or clearly erroneous factual findings. Parton v. White, 203 F.3d
552, 556 (8th Cir. 2000). Where possible, courts should interpret the parties’ intent
from the consent decree’s unambiguous terms. Pure Country, Inc. v. Sigma Chi
Fraternity, 312 F.3d 952, 958 (8th Cir. 2002). However, the circumstances and
context surrounding the order cannot be ignored. United States v. Knote, 29 F.3d
1297, 1300 (8th Cir. 1994); see also Mays v. Bd. of Educ. of Hamburg Sch. Dist., 834
F.3d 910, 918 (8th Cir. 2016). “This is because a consent decree is a peculiar sort of
legal instrument that cannot be read in a vacuum. It is a kind of private law, agreed
to by the parties and given shape over time through interpretation by the court that
entered it.” Knote, 29 F.3d at 1300 (cleaned up). We give a large measure of
deference to the interpretation of the district court that entered the consent decree.
A. Substantive Change in Law
The Department alleges that the district court erred in modifying the underlying
consent decrees. The Department argues that, because the original decrees do not
discuss interdistrict transfers, the repeal of the 1989 Act and enactment of the 2017
Amendments are not a substantial change in circumstances supporting modification.
Consent decrees may be modified under Federal Rule of Civil Procedure 60(b).
Smith v. Bd. of Educ. of Palestine-Wheatley Sch. Dist., 769 F.3d 566, 570 (8th Cir.
2014). Modifying a consent decree may be necessary where the laws or facts at issue
at the time of issuance have changed or new ones have arisen. Pasadena City Bd. of
Educ. v. Spangler, 427 U.S. 424, 437 (1976); Davis, 833 F.3d at 963–64.
“Modification may be appropriate when changed factual conditions make compliance
with the decree substantially more onerous, a decree proves to be unworkable because
of unforeseen obstacles, or enforcement of the decree without modification would be
detrimental to the public interest.” Parton, 203 F.3d at 555.
The party seeking modification must establish a significant change in
circumstances warranting revision of the decree. Smith, 769 F.3d at 570–71. If the
moving party shows a significant change in circumstances, the court then considers
if the proposed modification “is suitably tailored to the changed circumstances.” Id.
at 571. Modification should not be granted where a party relies on events that were
anticipated when the decree was entered. Mays, 834 F.3d at 919. The movant must
show that the change in law actually affects the section of the consent decree at issue.
Davis, 833 F.3d at 964.
The district court found that the repeal of the 1989 Act and the subsequent
enactment of the 2017 Amendments were a significant change in law that allowed for
modification of the consent decrees. The court examined the underlying orders and
determined that the consent decrees “clearly intended to prohibit any racial
discrimination occurring within” the Districts, “including preventing student transfers
which result in segregation of [the Districts’] student body.” The court specifically
found that the original consent decrees did not explicitly bar interdistrict transfers
because the 1989 Act already prohibited transfers where there was a segregative
impact or, in the case of Junction City, such transfers were not allowed in Arkansas
when the decrees were entered. The court determined that the 2017 Amendments’
requirement that a court order explicitly bar interdistrict transfers presented an
unforeseen obstacle making the consent decrees unworkable.
We agree that the laws influencing the consent decrees have clearly changed
since the Districts entered into the agreements. Had Arkansas law not prohibited
interdistrict transfers when the decrees were enacted, it is likely that the Department
of Justice would have required that language similar to the district court’s
modification be included in the agreements. A plain reading of the consent decrees
shows that they were intended to prohibit all forms of racial segregation. It was
reasonable for the authors of the decrees to rely on existing laws to frame the
agreements and not include provisions for actions already prohibited by those laws.
See Knote 29 F.3d at 1300 (stating that we cannot ignore the context in which a
consent agreement was entered).
In crafting its modification order the district court also took notice of
segregative issues stemming from the State’s inaction in the face of white flight. The
court heard evidence about the interdistrict transfers’ effect on the Districts, including
Lafayette County’s loss of thirty non-black students in the only year it did not receive
an exemption from participating in school choice. In Edgerson on Behalf of
Edgerson v. Clinton, we stated that district courts are “uniquely situated to appraise
the societal forces at work in the communities where they sit.” 86 F.3d 833, 838 (8th
Cir. 1996) (cleaned up). These appraisals include determining whether transfer
policies caused white flight. See id. While the court in Edgerson did not find that
the transfer policies had caused white flight, id. at 837, segregative interdistrict
transfers in this case had already negatively affected the Districts. It was not
improper for the district court to consider these facts in its determination.
The dissent seeks to minimize the evidence of white flight that was before the
district court. Aside from one district (Junction City), which had only private school
students requesting interdistrict transfers, the Department put forth limited evidence
regarding private school students requesting transfers. In particular, the Department
pointed only to two other private school families making such requests, both located
in Camden-Fairview. The Department did not present evidence regarding the number
of transfer requests by private school students in either Hope or Lafayette County.
The evidence in the record is contrary to the dissent’s assertions that there are
“no facts” to support a finding of a white flight problem in Junction City and that
interdistrict transfers would have little to no impact on Camden-Fairview’s and
Hope’s racial demographics. Multiple superintendents with decades of experience
in southern Arkansas schools testified that white flight would be a problem in
Junction City. As to the other Districts, all fifteen students requesting interdistrict
transfers in Camden-Fairview were from non-black students. The former
superintendent of Camden-Fairview (the superintendent when the district was
declared unitary) testified that the 1989 Act’s interdistrict transfer prohibition was
“critical” to the district achieving unitary status.
Of the 70 interdistrict transfer requests from students in Hope, 68 of them were
from non-black students. Hope’s superintendent testified that the percentage of nonblack students making interdistrict transfer requests did not surprise him because he
had discussions with white parents as to the reasoning why the parents wanted to
move their children to a different school district. The reasons included, in part,
because there was nobody in the child’s grade to date; there was nobody to invite for
sleepovers; and a disagreement with the morals of the student body. The dissent
incorrectly focuses on the fact that only 23 students actually transferred from Hope.
The lower transfer rate was because the other students’ requests were denied by the
receiving school districts. But for the actions of other school districts denying
applications, Hope could have lost 3% of its non-black student body, the maximum
allowed under Arkansas law, in its very first year of school choice participation.
Both school years Lafayette County participated in school choice, Lafayette
County lost the maximum 3% of its non-black student body allowed under the law,
or very close to it. During the 2013-2014 school year, it lost over 30 of its students
to interdistrict transfers. Each one of the transferring students was white. During the
2018-2019 school year, after its application for an exemption from school choice was
denied, 35 students requested interdistrict transfers. Once again, each one of the
transferring students was white. All but one of the students was accepted by other
school districts.
The district court did not abuse its discretion in considering and crediting
evidence of white flight when it determined that a substantial change in circumstances
had occurred warranting modification of the consent decrees.
B. Interdistrict Remedy
The Department asserts that, even if the repeal of the 1989 Act and enactment
of the 2017 Amendments qualify as a substantial change in the law, the district
court’s modification is still an impermissible interdistrict remedy. The Department
essentially argues that because the modification prohibits the Districts from allowing
their students to make segregative transfers, the court’s modification binds other
school districts. We reject this argument.
A court cannot order an interdistrict remedy without showing an interdistrict
violation. Edgerson, 86 F.3d at 837 (citing Milliken v. Bradley, 418 U.S. 717, 745
(1974) (Milliken I)). A violation is interdistrict if it “caused segregation between
adjoining districts.” Missouri v. Jenkins, 515 U.S. 70, 94 (1995). Interdistrict
remedies occur when a district court restructures or coerces local governments or
their subdivisions. Liddell v. Missouri, 731 F.2d 1294, 1308 (8th Cir. 1984) (citing
Hills v. Gautreaux, 425 U.S. 284, 298 (1974)).
We have not found an interdistrict remedy where the district court’s action does
not threaten autonomy of a separate governmental body. In Liddell, the court
required the State to pay the cost for voluntary interdistrict transfers. Id. We stated
that requiring the State to bear the transfer costs “does not threaten the autonomy of
local school districts; no district will be coerced or reorganized and all districts retain
the rights and powers accorded them by state and federal laws.” Id. Here, the district
court’s remedy does not threaten the autonomy of any school district. The
modification’s only potential effect on other school districts is a possible decrease in
transfer requests from the Districts’ students. Transfers out of the Districts may still
occur, no matter the race of the student, as long as there is an educational or
compassionate purpose and the request is approved by the student’s school board.
Limitations are placed only on the ability of a student to leave one of the Districts.
These requirements do not limit or set boundaries on other school districts’ rights or
powers to accept transfer students into their districts once the students have been
approved to transfer out of their original school. By restricting the conditions under
which students can transfer out of the Districts the district court has placed limitations
on only the Districts, not on any other school district in the state of Arkansas. The
district court has not restructured or coerced local governments, so the modification
of the consent decrees does not impose an impermissible interdistrict remedy.
Based on our review of the record, and the large degree of deference we must
give to the district court that entered the consent decree, we cannot find that the
district court abused its discretion in modifying the consent decrees.

Outcome: For the reasons stated herein, we affirm.

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