Six of seven Garland County school districts asked a federal judge Monday to end a 22-year-old consent decree that uses race-based criteria to restrict student transfers within the districts, arguing that the law it was based on has been repealed and the practice is "no longer just or equitable."

The 1992 consent decree stemmed from a lawsuit that the six districts -- Lake Hamilton, Lakeside, Cutter-Morning Star, Jessieville, Fountain Lake and Mountain Pine -- filed in 1989 against the Hot Springs School District. The decree incorporated race-based student assignment provisions from the 1989 Public School Choice Act, but in 2012 the statute was deemed unconstitutional because of the race restriction. That led legislators to replace the law with the School Choice Act of 2013, which eliminated the race restriction and created rules for districts to claim exemptions.

Despite the 1989 law being struck down as unconstitutional, the Garland County school districts have continued to be ruled by its language because the consent decree remains in force. On June 10, 2013, after several of the Garland County school districts sought clarification on whether the districts had to continue to conform to the 1989 state law on district transfers, U.S. District Judge Jimm Larry Hendren directed them to continue to comply with the desegregation agreement and its reliance on older state law, including the restrictions on transfers based on students' race.

Steve Anderson, superintendent of the Lake Hamilton School District, noted in a news release Monday that because of the consent decree, his district and the Mountain Pine district appeared earlier this month before the Arkansas Board of Education to reluctantly defend their denial of three black students' requests to transfer from Lake Hamilton to Mountain Pine.

"We would have permitted those children to transfer to Mountain Pine if we had been able to make the decision with our hearts, but the consent decree took that decision away from us," he said.

It made no difference that the Garland County chapter of the NAACP supported the transfer requests, he noted.

Bobby Gray, superintendent of the Mountain Pine district, was also quoted in the news release as saying, "For more than 20 years, we have had to explain to parents why the color of a child's skin determines whether or not he or she can transfer from one district to another in Garland County, and it is time for that to stop."

The news release said that the Hot Springs district, the defendant in the lawsuit, "was invited to join the effort" of the other Garland County school districts to end the decree "but so far has not decided whether it will support the motion."

Joyce Craft, superintendent of the Hot Springs district, said late Monday afternoon that she was surprised by the filing.

"I was not aware they had filed it," she said. "There has been some conversation about it, though not formally."

Citing the provisions of the consent decree, she said, "That's the way we've been operating."

She noted that when the issue of how to proceed in light of the School Choice Act of 2013 was raised last summer, Hendren ruled that they should keep following the decree's provision, and, "It works for us."

Craft said she wanted to talk to the Hot Springs School Board and the district's attorneys before saying how the district will respond to the motion, which was filed in Hot Springs.

Gary Newton, executive director of the Arkansas Learns organization that advocates for parental choice for schools for their children, welcomed the move by the six districts.

"Anything that finds resolution and removes school districts from federal court supervision is a good thing," he said. "Hearing that they are moving toward a resolution is very positive."

Newton said he hopes the move will serve as a model for other school districts in the state that are parties in old, typically inactive federal court desegregation orders that date back to the 1970s.

The motion filed on the districts' behalf by Little Rock attorney Jess Askew III and Hot Springs attorney D. Scott Hickam reveals more details about the denied transfer request.

It says that Latishia Walker of Garland County discovered when she went to register all three of her children in the Mountain Pine district for the 2014-2015 school year, that her property is technically located in the Lake Hamilton district, even though it is 22 miles from those schools and just 3.8 miles from the Mountain Pine schools. Her two oldest children had attended Mountain Pine since 2013.

"Because she lives in Garland County and is subject to this court's 1992 order, Mrs. Walker's application had to be considered under the 1989 Act," the attorneys wrote.

They said the Mountain Pine district denied her request, citing the 1989 law.

The Lake Hamilton district is 2 percent black while the Mountain Pine district is 10 percent black, and under the 1989 law, "no student may transfer to a nonresident district where the percentage of enrollment for the student's race exceeds that percentage in the student's resident district," they wrote, noting that this makes the students' race the determining factor in denying the transfer.

"Based in large part on situations like the one described above, where the race-based limit on inter-district transfer unfairly affects schoolchildren's right to school choice, movants [the six districts] have concluded that justice and equity require that they seek termination of the settlement agreement," the filing states.

"Having to operate under the 1989 statute creates confusion and misunderstandings for Garland County families," the news release said, noting that the districts "joined together to set aside the consent decree because of its use of race as the determining factor in whether student transfers are permitted."

The 1989 law was struck down as unconstitutional in 2012 by U.S. District Judge Robert T. Dawson of the Western District of Arkansas, in a case called Teague v. Cooper. The legislature's repeal of the 1989 law made an appeal moot.

Because there has been no legal determination concerning discrimination or segregation in any of the Garland County school districts, "there is no need for a continued federal decree binding or restricting the independent decision-making ability of the school districts," the attorneys for the six districts argued.

The School Choice Act of 2013 allows students to transfer to schools in districts in which they reside, subject to some limitations.

The desired school district is not required to add teachers or classrooms, and the receiving district can deny transfer requests if it doesn't have the capacity to accommodate the extra students, for example.

The law permits a district to annually declare an exemption to the School Choice Act if the district is subject to a desegregation order or other federal court order to remedy the effect of past racial segregation.

Twenty one of Arkansas' 236 school districts, including six in Garland County, claimed exemptions to Act 1227 of 2013 -- the Public School Choice Act -- for the current school year because of federal school desegregation court orders, according to the Arkansas Department of Education.

The Mountain Pine School District in Garland County did not take the exemption for this year, according to the agency. The districts that took the exemptions for this year are Arkadelphia, Blytheville, Brinkley, Camden-Fairview, Cutter-Morning Star, Dollarway, El Dorado, Forrest City, Fountain Lake, Helena-West Helena, Hope, Hot Springs, Jessieville, Junction City, Lafayette County, Lake Hamilton, Lakeside (Garland County), Marvell-Elaine, Pulaski County Special, South Conway County and Texarkana.

In the 2013-14 school year, a total of 23 districts claimed the exemption. Those that claimed an exemption that year that did not follow with a claim this year were the Little Rock, Mountain Pine, Lakeside in Chicot County and Stephens school districts. The Stephens district has been closed. The Little Rock District in January reached a settlement in its desegregation lawsuit. The Brinkley district is the only new district to the 2014-15 list of exempted school systems.

Metro on 08/26/2014