The 2015 Act eliminated the pure “opt out” exemption language but retained the “Supremacy Clause” exemption for districts whose desegregation obligation would be violated by participation in school choice. The only current recourse for districts with a history of segregation is the 2015 Act’s recognition of the right of a school district subject to a valid federal court order to declare a conflict with participating in school choice.El Dorado has claimed the exemption at every turn, including after the 2015 law change, because it said it was obligated to follow a court order prohibiting "freedom of choice" in school assignments.
EDSD believes that participation in school choice conflicts with this Court’s 1971 Order, not only based on the plain reading of the Order, but also because participating in school choice would destroy or impede its ability to attain unitary status consistent with its obligations to do so under the longstanding, clear, and consistent commands of the operative decisions of this Court, the United States Court of Appeals for the Eighth Circuit, and the Supreme Court of the United States.El Dorado notes that Parkers Chapel has acknowledged the El Dorado position in refusing to accept transfers on its own accord. The filing's account of what occurred at a July 14 state Board meeting are worth reciting, because it shows how the Board made mincemeat of the state Freedom of Information Act in some private discussions that seem to have affected the vote in favor of a transfer from El Dorado. Quote and continue, too, for a broad philosophical argument about school choice and state encouragement of segregation:
The proceedings were highly unusual in that the SBE first considered, and allowed, a transfer from Jacksonville-North Pulaski School District to Cabot over JNPSD’s declared exemption from and conflict with participation in choice. The SBE then voted 5-3 to deny the McAuliffes’ transfer in light of EDSD’s conflict, resulting in two different outcomes on the same issue: the decision by a school district to deny a school choice application due to the resident district’s statutorily conferred exemption. When the JNPSD Superintendent pointed out the differing results, one of the new board members, Dr. Fitzgerald Hill, stated that he had not understood the legal ramifications, presumably referring to his vote on the JNPSD transfer. During a ten-minute break, some members of the Board, including Dr. Hill, can be seen on video talking with Commissioner Johnny Key,
Following the break, the SBE voted to reconsider the JNPSD vote. Then, on Dr. Hill’s motion, the Board also voted to reconsider the EDSD transfer, even though the Board Chair noted that there had been no new information presented and no further discussion on the record
Following that vote, the Board continued discussing the school choice appeals and what entity has the authority to interpret the conflict. Following consideration of another agenda item and a break for lunch, and without further discussion by board members or comment by any of the parties, the SBE again voted to allow the JNPSD transfer and again without further discussion, three board members – Dr. Fitzgerald Hill, Charisse Dean, and Joe Black – reversed their prior votes and the SBE voted 6-2 to allow the EDSD to PCSD transfer.
It is worth noting that at least two of the Board members who changed their votes are visible on the video of the meeting talking amongst themselves and with Commissioner Key during the 10-minute break between the vote to deny the transfer and the vote to reconsider and allow the transfer.
EDSD has never been declared fully unitary by this Court. Recognizing this, this Court, as recently as 2013, retained jurisdiction over EDSD’s operations. EDSD believes it is unitary in all aspects save one: EDSD’s obligation to prevent the creation of racially identifiable schools within the district. Further, EDSD recognizes that it will be unable to attain unitary status in this regard if the mechanics of school choice allow students to move freely between and among districts without regard to whether such movement will create or maintainNote, too, this observation:
racially identifiable schools.
Clear and consistent precedent recognizes that State actions taken with the knowledge that they will lead to segregation, or will frustrate the goal of attaining compliance with valid federal court orders, are unconstitutional.The El Dorado filing then moves into the broader political question of "choice" and the current political climate — Republican-controlled and deeply invested in the Walton Family Foundation financing of the "school choice" movement.
Shifting political winds have resulted in the SBE and ADE leadership becoming increasingly pro-school choice. By this is meant simply that free and unrestricted school choice has seemingly become more important to a majority of the SBE membership than desegregation. This shift has vexed the SBE when applying the 2015 Act (and previously, the 2013 Act) to districts with 1960s-1970s era desegregation orders claiming exemption from or conflict with participation in school choice. These districts are limited in number by geography and demographics. They are exclusively “blacker” districts with “whiter” neighbors. Such districts remain unable to retain theirwhite students when faced with free and unrestricted school choice, (including but not limited to EDSD, Camden Fairview School District, Hope School District, Junction City Dchool District, Lafayette County School District, and Texarkana Arkansas School District). That this is true today is as unfortunate as it is indisputable. The operative question is not whether school choice is in and of itself a good thing in a perfect world. It is rather whether the version of school choiceHere's the El Dorado pleading.
now championed in some quarters in Arkansas is consistent with this State’s constitutional obligations in the far less than perfect world in which we actually live.