Jacksonville-North Pulaski School District

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 1 of 39
F~,~~D
lJ ~~ tll'~ I 111 l ' "!!;:T

EASTCRN l li'.' , ', ( ' t ' .,,\N'.;i\S
IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES W.
By:
LITTLE ROCK SCHOOL DISTRICT
v.
,,
l / ~ .. . ~i\, CLERK
I
PLAINTIFF
4: 82-cv-00866-D PM
PULASKI COUNTY SPECIAL SCHOOL

DISTRICT NO. 1, ET AL.
DEFENDANTS
MRS. LORENE JOSHUA, ET AL.
INTERVEN ORS
THE DULANEY INTERVENORS' MOTION TO INTERVENE
Intervenors Michelle and Lance Dulaney, and their daughter K. Dulaney, a

minor, (collectively "the Dulaney Intervenors"), for their motion to intervene as a
matter of right, or alternatively, permissively, for the limited purposes of
responding to and opposing Jacksonville/North Pulaski School District's
("JNPSD") Motion to Enforce 2014 Settlement Agreement in order to protect K.
Dulaney's interest in where she attends school based upon the Arkansas State
Board of Education's July 14, 2016 Order, state:
I.
The Intervenors
1.
The Dulaney Intervenors are residents of Jacksonville, Arkansas.
Their 15-year-old daughter, K. Dulaney, attended Pinewood Elementary School in

the Pulaski County Special School District ("PCSSD") for kindergarten through
first grades.
,.
2.
Following first grade, K. Dulaney transferred from Pinewood
Elementary School to Jacksonville Lighthouse Charter School, an open-enrollment

public charter school located within PCSSD, where she attended school from
second grade through eighth grade.
3.
Beginning in the 2016-2017 school year, the Dulaney Intervenors
desired that K. Dulaney attend school at Cabot High School's Freshman Academy,
located in the Cabot School District. The Dulaney Intervenors timely submitted an
Arkansas Public School Choice Act application to the Cabot School District on K.
Dulaney's behalf. Cabot School District denied the application on April 25, 2016.
4.
The Dulaney Intervenors appealed to the State Board of Education
under Ark. Code Ann. 6-18-1907(b)(l), and requested a hearing on Cabot School
District's denial of their choice application.
5.
At a hearing on July 14, 2016, the State Board of Education reversed
Cabot School District's denial of the Dulaney Intervenors' school choice

application and granted their appeal. In its order, the State Board of Education
acknowledged JNPSD's obligations in this matter and under the 2014 Settlement
Agreement, including its agreement to abide by the Public School Choice Act of
2013 (the "2013 Act").
6.
Based on the State Board of Education's July 14, 2016 Order, the
Dulaney Intervenors enrolled K. Dulaney in Cabot High School's Freshman
Academy, and she is scheduled to begin classes in that program on August 15,
2016.
II.
Grounds for Intervention
7.
The Motion to Enforce the 2014 Settlement Agreement filed on July
28, 2016 (the "JNPSD Motion") by JNPSD requests that this Court issue "an Order
enforcing the Consent Judgment and the 2014 Settlement Agreement and
preserving JNPSD's exemption from school choice transfers that is provided by
those federal court orders." JNPSD Motion, Doc. 5223, at p. 3,
8.
15.
By virtue of the July 14, 2016 State Board of Education Order, the
Dulaney Intervenors have been granted the right for K. Dulaney to transfer into the
Cabot School District beginning in the 2016-2017 school year. The JNPSD Motion
seeks to prevent the Dulaney Intervenors from exercising that right under state law.
9.
JNPSD requests specific relief that is adverse to and at the expense of
the Dulaney Intervenors. JNPSD Motion, Doc. 5223, at p. 3,
15; JNPSD Brief,
Doc. 5224, at p. 1. The Dulaney Intervenors have interests in the subject of the
JNPSD Motion and are so situated that disposition of the JNPSD Motion may as a
practical matter impair or impede their ability to protect their interests.
10.
For many reasons, the current parties to the case cannot and do not
represent the interests of the Dulaney Intervenors concerning the State Board of
Education's July 14, 2016 Order. JNPSD is clearly opposed to their interests, and
the State Board of Education has very different interests with respect to
enforcement of its July 14, 2016 Order than those of the Dulaney Intervenors.
Specifically, as further set forth in the accompanying brief, the Dulaney
Intervenors are not parties to any alleged agreements with or among the parties and
are citizens of Arkansas, parents and a student who seek to exercise the right of
inter-district transfer provided by Arkansas law and specifically granted by the
State Board of Education under Arkansas law.
III.
Timeliness of Intervention
11.
JNPSD filed its Motion on July 28, 2016. By its Order of July 29,
2016 granting JNPSD's request for expedited consideration, the parties' responses
to the Motion are due August 4, 2016 and a hearing has been scheduled for
Monday, August 8, 2016 at 1:00 p.m.
12.
Intervention by the Dulaney Intervenors will not delay any
proceedings on the Motion, and the Dulaney Intervenors will comply with every
deadline set forth in the Court's July 29, 2016 Order.
IV.
Pleadings in Intervention
13.
The Dulaney Intervenors attach and incorporate by reference their
proposed Response to JNPSD's Motion to Enforce 2014 Settlement Agreement,

which they will file immediately upon the grant of their motion to intervene.
14.
The Dulaney Intervenors file a separate Brief in Support of Motion to
Intervene in support of their motion.

WHEREFORE, and for all reasons appearing of record in this case or set
forth in the accompanying brief and Response to the Motion to Enforce 2014
Settlement Agreement, the Dulaney Intervenors respectfully request that this Court
grant their motion to intervene and award all other just and proper relief.
Respectfully submitted,
KUTAK ROCK LLP
124 West Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201
Telephone: (501) 975-3000
Facsimile: (501) 975-3
By: /s/ Jess Askew II
Jess Askew III, Ar
Jess.Askew@kutakrock.com
Ashley W. Hudson, Ark. Bar 2007136
Ashley.Hudson@kutakrock.com
Attorneys for Intervenors Lance, Michelle,
and K. Dulaney
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of August, 2016, I electronically filed the
foregoing with the Clerk of Court using the Electronic Case Filing system, which
shall send notification of such filing to the following:
All Counsel of Record.
Jess Askew III

WESTERN DIVISION
LITTLE ROCK SCHOOL DISTRICT
PLAINTIFF
4:82-cv-00866-DPM
v.
PULASKI COUNTY SPECIAL SCHOOL

DISTRICT NO. 1, ET AL.
DEFENDANTS
MRS. LORENE JOSHUA, ET AL.
INTERVEN ORS
DULANEY INTERVENORS' RESPONSE TO MOTION TO

ENFORCE 2014 SETTLEMENT AGREEMENT
The effort to cancel the student transfer in this case lacks any legal
basis, ignores Arkansas law, misconstrues the terms and effect of the 2014
settlement agreement, the detachment agreements and this Court's orders
approving them, and seeks to inject this Court into a family's education
decision controlled by state law. Jacksonville/North Pulaski School District
("JNPSD") contends it exempted itself from school choice under the Public
School Choice Act of 2013 (the "2013 Act") and that this Court insulated
JNPSD from legislative changes to the 2013 Act. JNPSD is wrong.
To the contrary, the 2013 Act was amended in 2015 to eliminate the
"exemption" that JNPSD claims. The present transfer was made under
current law, not the 2013 Act. JNPSD ignores this basic legal reality.
EXHIBIT
4821-2455-3781 I
JNPSD's theory that the 2013 Act, and its exemption, were frozen in amber
by the 2014 settlement agreement and this Court's orders, so that JNPSD
need not abide by current Arkansas law, is false, as set forth below. Further,
based on the status of this case, JNPSD's motion does not involve any
matter within this Court's jurisdiction and is solely a matter of state law.
FACTS
In the spring of 2016, the Dulaney Intervenors, who live within the
area of JNPSD, submitted a school choice application under Ark. Code Ann.
6-18-1901, et seq., the current Arkansas law (sometimes referred to as the
"2015 Act" in this Response), requesting a transfer for K. Dulaney to the
Cabot School District. Ex. 1, 2015 School Choice Act Application. K.
Dulaney, a rising high school freshman biracial female, has attended
Jacksonville Lighthouse Charter School ("Jacksonville Lighthouse") since
the second grade. Had the transfer to Cabot not been approved, she would
have continued to attend Jacksonville Lighthouse through high school. She
has not attended a "traditional" school in the Pulaski County Special School
District ("PCSSD") or JNPSD since second grade.
On April 25, 2016, Cabot denied K. Dulaney's school choice
application because JNPSD declared an exemption and stated that it was
party to a federal desegregation case. Ex. 2, April 25, 2016 Denial Letter. K.
4821-2455-3781 1
Dulaney and her parents appealed the decision, and, under Ark. Code Ann.
6- l 8- l 907(b )(1 ), requested a hearing before the Arkansas State Board of
Education ("State Board"). Ex. 3, Dulaney Appeal Letter. At a hearing on
July 15, 2016, the State Board granted K. Dulaney's school choice appeal.
Ex. 4, State Board Order.
Since that time, K. Dulaney has enrolled in Cabot's "Freshman
Academy" and registered for classes in the district. An avid and talented
soccer player, she has also joined the Cabot soccer team and intends to work
toward college scholarships for soccer throughout her high school career. If
she is forced to transfer from Cabot, where she is currently registered, it is
unlikely that she can regain her seat at Jacksonville Lighthouse. Further, she
would have to sit out a year of soccer eligibility under current high school
athletics rules, which could hinder her ability to qualify for college
scholarships in her final two years of high school.
ARGUMENT
JNPSD argues that the State Board's grant of K. Dulaney's school
choice transfer application violates a contract obligation approved by this
Court and requests that this Court order the State Board to rescind its July
15, 2016 order. Not only is the theory unfounded under Arkansas law and
contrary to the contract and court order, the remedy is unnecessary, beyond
4821-2455-3781 1
the jurisdiction of this Court and would devastate the Dulaney family, whose
sole purpose is providing the best education possible for K. Dulaney.
JNPSD's Motion to Enforce 2014 Settlement Agreement (the "Motion to
Enforce") must be denied.
I.
The Public School Choice Act of 2015 does not contain an "opt
out" provision.
The 2015 Act modified the exemptions to school choice, eliminating
the "opt out" provision previously contained in the 2013 version of Ark.
Code Ann. 6-18-1906(b ). JNPSD attempted to assert the non-existent 2013
exemption for the 2016-2017 school year by notice of exemption dated
March 9, 2016, directed to the Arkansas Department of Education. However,
the 2013 Act, as amended by the 2015 Act, no longer contains the "opt out"
prov1s1on. Instead, Ark. Code Ann. 6-18-1906 was revised to read as
follows:
(a)(l) If the provisions of this subchapter conflict with a
provision of an enforceable desegregation court order or a
district's court-approved desegregation plan regarding the
effects of past racial segregation in student assignment, the
provisions of the order or plan shall govern.
(2) If a school district claims conflict under subdivision
(a)(l) of this section, the school district shall immediately
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 with the interdistrict school choice
provisions ofthis subchapter.
4821-2455-3781.1
Ark. Code Ann. 6-18-1906(a) (Repl. 2015). Current section 1906(b) has
nothing to do with the former exemption, which is set forth below at pages
14-15.
Under the current provisions of Ark. Code Ann. 6-18-1906, there is
no right for a district to claim a blanket "exemption" on the grounds that it is
"subject to" a desegregation order or plan. Under the current law, JNPSD
must present evidence of an actual conflict between the 2015 Act and the
student-assignment obligations of a current desegregation plan or order.
JNPSD has not presented such evidence and cannot do so because this Court
released PCSSD from obligations relating to student assignment in August
2014, before JNPSD was even detached from PCSSD.
Judge Wilson recently addressed a similar issue m Forrest City
Special School Dist. v. Palestine-Wheatley School District, et. al. Case No.
2: 14-cv-00117 (E.D. Ark.). There, the Forrest City Special School District
("FCSSD") filed suit against the Palestine-Wheatley School District
("PWSD") and the Wynne School District alleging that the two districts had
granted impermissible school choice transfers under the 1989 Public School
Choice Act, the 2004 Opportunity Public School Choice Act, the 2013 Act,
and the 2015 Act. Relevant to this action, FCSSD asserted that it was
4821-2455-3781 I
exempt from the 2013 Act because it was under a federal desegregation
order.
In his order granting defendants' motion for summary judgment,
Judge Wilson found that PWSD and Wynne School District's acceptance of
interdistrict school choice transfer students from FCSSD under any school
choice law, including the 2013 Act, did not conflict with any desegregation
order. Ex. 5, Forrest City Order, pp. 7-8. In so holding, Judge Wilson
concluded that "[the desegregation order] does not prevent [FCSSD] from
participating in interdistrict transfers, so long as they remain aware of their
obligation to
maintain
desegregated
school
system and
adjust
accordingly." Id. There, as here, FCSSD did not have ongoing desegregation
obligations in conflict with interdistrict school choice.
School choice in JNPSD cannot conflict with student-assignment
desegregation obligations because JNPSD has none. There is no basis under
Arkansas law for JNPSD to claim an exemption from school choice.
II.
The Public School Choice Act of 2013 was not incorporated into
the terms of the 2014 Settlement Agreement and this Court's
Orders.
It is no secret what JNPSD seeks to do: it contends the 2013 Act, with
the exemption right, was enshrined into a settlement agreement created

before JNPSD existed that this Court then transformed into a school choice
4821-2455-3781 1
trump card by approving the agreement. The seven school districts in

Garland County did this in 1992, in a settlement agreement approved by a
federal court that for the last 25 years has supplanted or nullified school
choice laws in that County. That ruse is the subject of current litigation
pending on appeal in the Eighth Circuit. But the settlement and Court orders
here did not insulate the Pulaski County school districts from school choice
laws, for the reasons that follow.
Even if (contrary to the terms of the contract and the footnote below)
JNPSD were bound to the school choice obligations under paragraph F of
the 2014 Settlement Agreement, those obligations do not support JNPSD's
theory. According to the pertinent part of paragraph F.3 of the Settlement
Agreement: "During the five year period, the Districts agree to abide by the
terms of Act 1227of2013, the Arkansas Public School Choice Act of 2013,
including the exemption provisions contained in Ark. Code Ann. 6-181906(a) and (b)." 2014 Settlement Agreement, Doc. 4937-1, pp. 5-6. While
the Districts 1 agreed to "abide by" the 2013 Act for a period of five years,
the 2013 Act was not incorporated into the terms of the contract. The
Districts' promise to follow the law does not create an enforceable
1
Page 1 of the 2014 Settlement Agreement defines the ''Districts" as the Little Rock
School District ("LRSD''), North Little Rock School District ("NLRSD") and Pulaski
County Special School District (''PCSSD"). JNPSD did not exist at the time and is not
defined as a "District."
4821-2455-3781 I
contractual obligation that could, upon approval by this Court, supersede

state law, particularly the 2013 Act as it was later amended by the 2015 Act.
Under Arkansas law, when a contract refers to another writing and
makes the terms of that writing a part of the contract, the two documents
become a single agreement between the parties and must be construed
together. See F & M Bldg. P'ship v. Farmers & Merchs. Bank, 316 Ark. 60,
871 S.W.2d 338 (1994); see also RICHARD A. LORD, 11 WILLISTON ON
CONTRACTS 30:25 (4th ed. 1999). In order to incorporate a separate
document by reference into a contract, "the reference must be clear and
unequivocal, and the terms of the incorporated document must be known or
easily available to the contracting parties." 17A C.J.S. Contracts 316
(1999). The document to be incorporated "must be described in such terms
that its identity may be ascertained beyond reasonable doubt." Id.; see also
LORD, supra, at 30:25. Furthermore, "it must be clear that the parties to
the agreement had knowledge of and assented to the incorporated terms." Id.
Ingersoll-Rand v. El Dorado Chemical Co., 373 Ark. 226, 283
S.W.3d 191 (2008), addressed incorporation of a document (or, in this case,

a statute) into a contract by reference. There the Court concluded that the
contract must clearly and specifically reference the document to be
4821-2455-3781 l
incorporated, such that the terms and conditions are incorporated "beyond a
reasonable doubt." 373 Ark. at 234; 283 S.W.3d at 197.
No such incorporation exists here; to the contrary, the Districts never
even tried to incorporate the terms of the 2013 Act into their settlement.
While the Districts agreed to "abide by" the 2013 Act, there is no indication
within the Settlement Agreement that the Districts intended to adopt and
incorporate the 2013 Act into the Settlement Agreement as part of its terms,
such that the Districts transformed a statutory obligation into a contractual
obligation. When the statute changed, the parties' legal obligations changed
under the new law; they cannot claim the settlement agreement preserved the
2013 Act in amber as a contract term. In fact, these three Districts are
operating under the 2015 Act with respect to the forms, timelines and other
details of school choice, and NLRSD and LRSD are participating full-bore
in school choice under the 2015 Act. This conduct belies JNPSD's legal
position.
The 1991 Garland County School Desegregation Case Comprehensive
Settlement Agreement provides a stark contrast. The parties to Davis, et al.
v. Hot Springs School Dist., et al., Case No. 6:89-cv-06088 (W.D. Ark.),
reached a settlement agreement in the Garland County desegregation action,

including a provision addressing the school choice law then in effect in
4821-2455-3781 l
Arkansas. Act 609 of 1989 (the "1989 Act") was at that time a voluntary
school choice program, under which participating school districts agreed to
allow interdistrict student transfers based upon the race of the student
applicants. Id. at p. 2. In that settlement agreement, later approved by the
court, the Garland County parties stated:
[The Garland County School Districts] agree to implement, or
have already implemented as a show of good faith, Act 609 of
the 1989 Regular Session of the Arkansas General Assembly,
better known as the School Choice Act.
Id. The Garland County school districts continued to operate under the 1989
Act until 2012, when the United States District Court for the Western
District of Arkansas held in Teague, et. al. v. Arkansas Bd. of Educ., et. al.,
Case No. 6:10-cv-6098 (W.D. Ark.), that portions of the 1989 Act violated
the Equal Protection Clause of the Fourteenth Amendment. The Arkansas
General Assembly repealed the 1989 Act following the Teague decision and
enacted the 2013 Act, which eliminated the race based transfer provisions.
Following adoption of the 2013 Act, the Garland County districts
collectively filed a Petition for Declaratory Relief, requesting that the Court
declare that they were obliged to continue to operate according to the 1989
Act under the terms of their settlement agreement+ court order, and were
not subject to the 2013 Act. The Western District held that the terms of the
4821-2455-3781 l
10
1989 Act supplied the parties' obligations under the settlement agreement
and order and remained effective notwithstanding the statute's repeal.
Here, under the plain language of the 2014 Settlement Agreement, the
Districts agreed to "abide by" the 2013 Act. There is no contract language
incorporating the statute to supply contractual obligations that would outlive
the statute or arguably override later amendments to the law. While JNPSD
now argues that the "[t]he parties to the Settlement Agreement specifically
referenced the 2013 Act in order that the Districts would have certainty
regarding the requirements of the Settlement Agreement while it was in
effect," that argument does not reflect the language of the 2014 Settlement
Agreement or make the case for incorporation by reference. Brief in Support
of JNPSD's Motion, Doc. 5224, p. 10. All they (the three Districts, not the
State) agreed to do was "abide by" the 2013 Act.
Agreeing to "abide by" a mandatory statute is fundamentally different
from agreeing to "implement" a voluntary statute as a term of a settlement.
The 2014 Settlement Agreement is written in order to capture the expression
of the parties' intent and agreement, and there is nothing in that expression
that incorporates the 2013 Act as a term of the Settlement Agreement. A
fortiori, this Court did not elevate the 2013 Act to a contract term included
in a consent judgment that immunized the Pulaski County Districts from
4821-2455-378 l 1
11
later changes in the school choice law. They therefore are subject to the
2015 Act.
III.
In any event, this school choice order is enforceable under the

2013 Act.
Even if the 2014 Settlement Agreement created an obligation that
JNPSD follow the 2013 Act, "including the exemption provisions contained
in Ark. Code Ann. 6-18-1906( a) and (b ), " after it was amended by the
2015 Act, the Dulaney Intervenors would still be entitled to their school
choice transfer to Cabot for two reasons. First, applying former 1906(a), K.
Dulaney's choice transfer to the Cabot School District does not conflict with
any of JNPSD's desegregation obligations. Second, applying former
1906(b ), nothing in the 2014 Settlement Agreement, the JNPSD detachment
agreements, or any other desegregation order or plan regulates or prohibits
students residing within the JNPSD school district from participating in
school choice or disables the State Board from hearing appeals from such
students under the 2015 Act.
a.
The transfer does not conflict with the JNPSD's desegregation

obligations.
In the 2013 Act, Ark. Code Ann. 6-18-1906(a) provided:

(a) If the provisions of this subchapter conflict with a
provision of an enforceable desegregation court order or a
district's court-approved desegregation plan regarding the
4821-2455-3781 I
12
effects of past racial segregation in student assignment, the

provisions of the order or plan shall govern.
Ark. Code Ann. 6-18-1906(a) (Repl. 2013). While the original parties to
this litigation previously had desegregation obligations in all areas, including
student assignment, on January 30, 2014, this Court found that PCSSD, the
last Pulaski County school district still a party to this litigation, was unitary
in the area of student assignment. Order, Doc. 4986. On August 21, 2014,
the Court released PCS SD from Section C of Plan 2000, addressing student
assignment. Consent Judgment, Doc. 5063, p. 3.
The August 21, 2014 Consent Judgment incorporated the terms of the
previously approved 2014 Settlement Agreement. Consent Judgment, Doc.
5063. At that time, JNPSD did not exist, so the Court retained jurisdiction
"as necessary should a Jacksonville/North Pulaski Area School District be
created by the State." Id. According to the terms of the 2014 Settlement
Agreement, attached as Exhibit 1 to the Consent Judgment, "any successor
district or newly created school district in Pulaski County shall be
considered a party to and bound by" the 2014 Settlement Agreement.
Exhibit 1 to the Consent Judgment, Doc. 5063, p. 8, Sec. E.1. Plans to
detach JNPSD from PCSSD followed shortly thereafter.
There is no question that JNPSD, as a newly created district, lacks any
history of segregation of its own. Unlike the other Pulaski County school
4821-2455-3781 1
13
districts, JNPSD, as a new entity, was never determined to have violated its
constitutional obligations, much less any that required a remedy. Rather, its
obligations were instead inherited from its "parent" district, PCSSD. One
condition of JNPSD's creation was that it be bound by certain ongoing
desegregation obligations in this litigation. But as of January 30, 2014, seven
months before the Court's approval of the 2014 Settlement Agreement,
student assignment was no longer one of those obligations. Order, Doc.
4986. Since there is no current desegregation plan designed to remedy the
effects of past segregation in student assignment, JNPSD cannot be
exempted from school choice because of a conflict under Ark. Code Ann.
6-18-1906(a).
b.
There is no provision in the parties' desegregation plans as they

relate to JNPSD that provides for choice exemptions.
Second, none of JNPSD's obligations under the current desegregation

plans 2 in this matter require that JNPSD claim the former 2013 blanket
exemption to school choice found at Ark. Code Ann. 6-18-1906(b)(l)
(Repl. 2013):
2
To the extent JNPSD may make such an argument, school choice is a different legal
mechanism from desegregation tools such as legal transfers, majority to minority
transfers, magnet schools, and other options such as open enrollment public charter
schools, home schooling and private schools. Language in the 2014 Settlement
Agreement about one of these, such as legal transfers, does not extend to school choice
transfers. Any doubt about this proposition is removed by the fact that LRSD and
NLRSD, parties to the 2014 Settlement Agreement, participate fully in school choice
under the 2015 Act.
4821-2455-3781 I
14
(b)(1) A school district annually may declare an exemption

under this section if the school district is subject to the
desegregation order or mandate of a federal court or agency
remedying the effects of past racial desegregation.
At the time the 2014 Settlement Agreement was executed, JNPSD did
not exist. Section E. 1 of the 2014 Settlement Agreement acknowledges that
the State "may immediately authorize" the creation of JNPSD (emphasis
supplied), but the remainder of the document does not refer to the new
district. 2014 Settlement Agreement, Doc. 5063, p. 5,
E. 1. The collective
term "Districts" in the document means NLRSD, LRSD, and PCSSD. Id. at
p. 1. JNPSD was not included in that definition. It was only the "Districts"
that agreed in section F. 3 to abide by the 2013 Act.
While there is no question that both detachment agreements bind
JNPSD to parts of the 2014 Settlement Agreement, neither document
adopted all of the obligations contained in the 2014 Settlement Agreement.
JNPSD argues that the initial detachment agreement between JNPSD and
PCSSD, which exempted JNPSD from the 2013 Act during the "transition
period" while it detached from PCSSD, demonstrates applicability of the
2014 Settlement Agreement to JNPSD. Brief in Support of JNPSD's
Motion, p. 5; Initial Detachment Agreement, Doc. 5080-1. The "transition
period," according to both the initial detachment agreement and the final
detachment agreement, was defined as a period "not to exceed two
4821-2455-3781 I
15
consecutive years." Initial Attachment Agreement, Doc. 5080-1, p. 1, if 1;

Final Detachment Agreement, Doc. 5145, p. 1, if 1.
Both detachment agreements anticipated that the transition period
would, and did, end on July 1, 2016. Id. It therefore was not in effect at the
time of the State Board appeal. The language of the expired initial
detachment agreement concerning the 2013 Act cannot support JNPSD's
argument or motion.
The final detachment agreement also required that JNPSD accept a
"per-student share" of PCSSD's responsibility for approving legal transfers
to LRSD and NLRSD as required by the 2014 Settlement Agreement. Id. at
p. 12, if 11(1). But the final detachment agreement is completely silent with
regard to JNPSD's school choice obligations. JNPSD's brief tacitly
acknowledges this omission, focusing only on the obligation in the final
detachment agreement that JNPSD participate in the legal transfer
arrangement among the Pulaski County school districts. Brief in Support of
JNPSD's Motion to Enforce, Doc. 5224, p. 5. The final detachment
agreement is silent on school choice, demonstrating that no such obligation
is directed to JNPSD.
4821-2455-3781 I
16
IV.
JNPSD has not identified a legal violation requiring a remedy.
Finally, to the extent that JNPSD requests this Court to override a

state law to remedy alleged racial segregation in its school district, it must
demonstrate that a violation exists, and that its remedy, denying school
choice transfers, is narrowly tailored to remedy the alleged violation.
Missouri v. Jenkins, 495 U.S. 33, 57 (1990). JNPSD has not made such a
showing and is not entitled to an order from this Court overriding the State
Board's order or avoiding the state processes already available to it.
Setting aside the obvious problems that JNPSD is unitary in student
assignment and K. Dulaney is of mixed race, JNPSD presented some
historical statistical data about student populations in its school district and
Cabot, but fails to explain how that data is relevant here. By its own data,
JNPSD is a racially balanced school district, with approximately 48%
African American students. K. Dulaney desires to transfer to Cabot, which is
less diverse, with approximately 3% African American students. K. Dulaney
does not attend JNPSD and has not since the second grade, when it was part
of PCSSD. What effect would the transfer of this one student have on
JNPSD? None. There is no effect on racial balance or on JNPSD's finances.
K. Dulaney's transfer does not violate any law or court order. More
broadly, the very fact that this Court has declared all of the Pulaski County
4821-2455-378 l I
17
districts unitary as to student assignments demonstrates that there is no

constitutional violation concerning student assignment remaining to be
remedied. JNPSD has provided no evidence to the contrary.
Moreover, this school-choice transfer does not touch upon any issue
remaining within the jurisdiction of this Court. Instead it presents a pure
question of state law over which this Court has no jurisdiction. Knight v.
Pulaski County Special School District, 112 F.3d 953 (8th Cir. 1997).
CONCLUSION
There is no cause for this Court to disrupt the state laws that permit K.
Dulaney's transfer to the Cabot School District. This Court should deny
JNPSD' s motion.
Respectfully submitted,
KUTAK ROCK LLP
124 West Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201
Telephone: (501) 975-3000
Facsimile: (501) 975-3001
By: /s/ Jess Askew III
Jess Askew III, Ark. Bar No. 86005
Jess.Askew@kutakrock.com
Ashley W. Hudson, Ark. Bar 2007136
Ashley.Hudson@kutakrock.com
Attorneys for Intervenors Lance,
Michelle, and K. Dulaney
4821-2455-3781 1
18
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of August, 2016, I electronically
filed the foregoing with the Clerk of Court using the Electronic Case Filing
system, which shall send notification of such filing to the following:
All Counsel of Record.
/s/ Jess Askew III

Jess Askew III
4821-2455-3781 1
19
'APPLICATION FOR TRANSFER TO A NONRES@ENT DISTRICT

"ARKANSAS PUBLIC SCHOOL CHOICE ACT OF 2015"
ust Be Submitted to Non-Resident District
~~~~~~~~~
Gender
Male
Female
Grade:
Does the applicant require special needs or programs? Yes
Is applicant cmTently under expulsion?
Yes
ETHNIC ORIGIN (CHECK ONE)

2 or More Races ~
Hispanic
D ~
Native American/
Native Alaskan
District Name:
Address:
No
(For data reporting purposes only)
African-American
Asian
CountyName:
414 \tJ.
Native Hawaiian/
Pacific Islander
D
D
fu)~sk..i
M~V\
Phone:
District Name:
County Name:
LoV\ok.<...
Address:
Phone:
Does the applicant already have a sibling or step-sibling in attendance in this district pursuant to the Public School Choice
Act of2013 or the Public School Choice Act of20IS?
No
EXHIBIT
Ii
Name:
Home Phone:
Addres
Work Phone:
------
---
Parent/Guardian Signature
Date:
/:;i ~I
Pursuant o
<lards adopted
1 en
a nonresident district may reserve the right to accept and
reject applicants based on capacity of programs, class, grade level, or school building. Likewise, a nonresident district's
standards may provide for the rejection of an applicant based upon the submission of false or misleading infonnation to
the above listed request for information when that information directly impacts the legal qualifications of an applicant to
transfer pmsuant to the School Choice Act. However, a nonresident district's standards shall not include an applicant's
previous academic achievement, athletic or other extracurricular ability, handicapping conditions, English proficiency
level, or previous disciplinary proceedings, except that an expulsion from another district may be included pursuant to
Ark. Code Ann. 6-18-510. Priority will be given to applicants with siblings or step-siblings attending the district. The
nonresident district shall accept credits toward graduation that were awarded by another district and award a diploma to a
nonresident applicant if the applicant meets the nonresident district's graduation requirements. This application must be
}lied in the nonresident district or postmarked no later than May 1 of the year in which the applicant would begin the fall
semester at the nonresident district A student whose application for transfer is rejected by the nonresident district may
request a hearing before the State Board of Education to reconsider the transfer by filing such a request in writing with the
Commissioner of Education no later than ten (10) days after the studont or student's parent receives a notice ofrejection.
(Consult Ark. Code Ann. 6-18-1905 and the Arkansas Department of Education Rules Governing the Public School
Choice Act of2015 for specific procedures on how to :file such an appeal).
Date and Time Received by Nonresident District:
Posi-rncvt.-ed
Resident District LEA#:
Apr ~olfo
NomesidentDistrictLEA#:
Student's State Identification#:

Application
1Lf-
Accepted
Rejected
Reason for Rejection (If Applicable):
Date Notification Sent to Parent/Guardian of Applicant:

Date Notification Sent to Resident District :
fS04-
(JS,
It's about
i-l-MIDS
Cabot Public Schools
Apr 25, 2016
Nacesha M. Dulaney
Jacksonville, AR 72076
RE: 2016-17 School Choice Transfer Request for .Dulaney

Dear Ms. Dulaney,
The Cabot School District has received your School Choice application and submitted it to the Jacksonville North
Pulaski School District. Unfortunately, JNPSD has denied your application. JNPSD has informed us that your
application was denied because they are party to a desegregation lawsuit.
Because JNPSD has denied your application, your child is not eligible to attend the Cabot School District for the
2016-17 school year. However, you may appeal JNPSD's decision by requesting a hearing before the State
Board of Education. This request must be made in writing to the Commissioner of Education no later than ten
days after receiving this letter.
Johnny Key, Commissioner
Arkansas Department of Education
Four Capitol Mall, Room 304-A
Little Rock, AR 72201
Phone: 501-682-4203
Email: Johnny.Key@arkansas.gov
Michael Byrd
Director of Student Services
Cabot Public Schools
EXHIBIT
' a
RECEIVED
COMMJSS?O~:ER'S OFFICE
MAY 10 2016
'
DEPARTMENT OF EDUCAT10ffrv1ay
41 2016
Arkansas Department of Education

Four Capitol Mall, Room 304-A
Little Rock, Ar 72201
Dear Commissioner Johnny Key,

I, Nacesha Dulaney, am writing this letter to request a hearing before the.State Board of
Education. I would like to appeal the decision of JNPSD to deny my application for transfer
of my daughter,
/?,fuc4!W{
Dulaney, to Cabot School District.
A{
/hfac5
Nacesha M Dulaney
RECEIVED
AlTORNevs OFFICE
MAY D1 201S
DEPARTMENT OF EDUCATION
GENERAL DIVISION
EXHIBIT
I -3
BEFORE THE ARKANSAS STATE BOARD OF EDUCATION

On July 14, 2016, during a regular meeting of the Arkansas State Board of Education, a
hearing was conducted pursuant to the legal authority and jurisdiction vested in the Board by the
Public School Choice Act of 2015 codified at Ark. Code Ann. 6-18-1901 et seq., and the
Arkansas Department of Education Rules Governing the Public School Choice Act of 2015.
Before the Board was the appeal of the Dulaney family ("Petitioner") challenging the decision of
the Cabot School District ("Respondent") denying their applications for transfer of their child
under the Public School Choice Actof2015.
FINDINGS OF FACT
1.
The Petitioner resides in the Jacksonville North Pulaski School District.
2.
Petitioner submitted an Arkansas Public School Choice Act application to the
Cabot School District on behalf of their child, K. Dulaney.
On April 25, 2016, Respondent denied the Petitioner's applications because the
3.
Petitioner's resident school district, the Jacksonville North Pulaski School District, declared a
conflict with the provisions of the Public School Choice Act of 2013, stating that it is subject to a
federal court desegregation order remedying the effects of past racial segregation.
4.
The Jacksonville North Pulaski School District notified the Department of
Education on March 17, 2016, that it remains subject to a federal court desegregation order in the
case of Little Rock School District v. Pulaski County Special School District et al., Case No.
4:82-cv-866-DPM, Eastern District of Arkansas.
5.
On or about May 6, 2016, pursuant to Ark. Code Ann. 6-18-1907(b)(l), the
Petitioner requested a hearing before the State Board to appeal the decision of the Respondent to
deny the school choice applications.
6.
Jacksonville North Pulaski School District is a party to the case styled Little Rock
School District v. Pulaski County Special School District, et al., Case No. 4:82-cv-866-DPM,
Eastern District of Arkansas. The 2014 global settlement agreement in the aforementioned case
states the districts will abide by the Public School Choice Act of 2013 for a five-year period,
including the exemption provisions of Ark. Code Ann. 6-18-1906(a) and (b) (Repl. 2013).
CONCLUSIONS OF LAW
7.
The Public School Choice Act of 2013, which took effect on April 16, 2013,
authorizes a school district to declare itself exempt from the Act if the district is subject to a
desegregation order or mandate of a federal court or agency remedying the effects of past racial
segregation.
EXHIBIT
L\
8.
The Jacksonville North Pulaski School District declared an exemption under the
Public School Choice Act of 2013 for the 2016-2017 school year. All transfers under school
choice are subject to the limitation of the exemption declared by the school district.
ORDER
9.
Signed this
The Petitioner's school choice appeal is hereby granted.
\CS
day of July, 2016

Case 2:14-cv-00117-BRW Document 80 Filed 12/07/15 Page 1of8

EASTERN DIVISION
FORREST CITY SPECIAL SCHOOL DISTRICT
vs.
PLAINTIFF
2:14-CV-00117-BRW
PALESTINE-WHEATLEY SCHOOL DISTRICT

and WYNNE SCHOOL DISTRICT
DEFENDANTS
ORDER
Pending are Defendants' Motions for Summary Judgment (Doc. Nos. 30, 34).
Responses, replies, and supplemental responses have all been filed. 1 Based on the findings of
fact and conclusions of law below, the Motions are GRANTED.
I.
BACKGROUND
This case involves a dispute over whether students living in the Forrest City Special
School District may transfer to neighboring school districts under Arkansas's school-choice
statutes. Forrest City contends that the Palestine-Wheatley School District and Wynne School
District granted impermissible transfers under the now-repealed 1989 School Choice Act, 2 the
2004 Opportunity Public School Choice Act, 3 and the "School Choice Act of 2013."4 Plaintiff
asserts that it was exempt from the 2013 Act because it was under a federal desegregation order
- specifically McKisick v. Forrest City Special School District No. 7. 5
Doc. Nos. 42, 44-50, 51, 53,63, 65, 66.
Ark. Code Ann. 6-18-206. In 2013, this statute was repealed by the Public School
Choice Act of 2013, Ark. Code Ann. 6-18-1901, et seq.
3
Ark. Code Ann. 6-18-227.
Ark. Code Ann. 6-18-1901, et seq. In 2015, the statute was amended and is now
known as the "Public School Choice Act of 2015."
5
No. 2:69-CV-00042-0H (E.D. Ark.) .

.--E111X~H~IB~IT~~

Case 2:14-cv-00117-BRW Document 80 Filed 12/07/15 Page 2 of 8
A.
The McKisick Case
The McKisick case was filed in 1969. According to the complaint, in 1965 the Forrest
City School District created a "program of pupil desegregation" known as "freedom of choice"
in attempt to comply with federal guidelines and receive federal funding. However, the only
students "choosing" to change schools were white; so the desegregation plan was ineffective. 6
The plaintiffs in McKisick sought an injunction to enjoin Forrest City from "operating a dual
school system" (in other words, plaintiffs wanted Forrest City to desegregate the school system)
and to require Forrest City to immediately implement a plan that would unify the district. 7
In a January 16, 1970 order, the Honorable Oren Harris, of the Eastern District of
Arkansas, held that "[a]lthough [Forrest City] has a planned program of operation toward
[desegregation] compliance, it has failed to take the necessary steps to effectively implement a
desegregated unitary school system." 8 Judge Harris required Forrest City to file an "appropriate
plan for immediate conversion of the public schools to a unitary, non-racial system."9 The plan
was required to eliminate the "dual bussing" system and required Forrest City to assign
employees, faculty, and "students to schools and classes ... without regard to race .... " 10 The
court also held that "[a]ll vestiges of 'freedom of choice' shall be eliminated .... " 11
Forrest City eventually proposed a plan that included information regarding the
"distribution of the students in all of its schools, teacher assignments, exhibits showing proposed
6
Doc. No. 2-1, page 16 of31.
ld. at page 17 of 31.
Doc. No. 2, page 19 of31.
Jd at page 20of31.
!Old.
''Id.
2

bus routes and attendance areas adopting a combination of pairing of certain schools and zoning
as applicable to its elementary schools." 12 In August 1971, the court in McKisick found that the
proposed plan was acceptable, and retained jurisdiction over "any problems that might arise in
connection with the operation of the Forrest City Schools and compliance with the orders of this
Court." 13
Nothing else happened in McKisick until 1990, when Forrest City sought approval for a
magnet school program. 14 The court noted "continuing jurisdiction for an indefinite period of
time" over the "ancient case." It also recognized that Forrest City had "monitored and continued
the operation of the Forrest City Schools in compliance with" the court's orders since 1971 Y
On December 4, 1990, the court approved Forrest City's magnet school plan. 16 That was the last
activity in McKisick. 11
B.
Arkansas Laws
The Arkansas Opportunity Public School Choice Act of 2004 allows "a public school
choice option in order to give a child the opportunity to attend a public school or school district
not in academic distress."
18
However, if the 2004 Act "conflicts with the provisions of a federal
desegregation court order applicable to a school district, the provisions of the federal
12
Doc. No. 2-1, page 25 of31.
13
Doc. No. 2-1, page 28 of 31.
14
Doc. Nos. 2-1, page 29of31; 43.
15
Doc. No. 2-1, page 29of31.
!6Id.
17
Doc. No. 43.
18
Ark. Code Ann. 6-18-227(a)(2)(B)(iv).

3

desegregation court order shall govern. " 19 The Public School Choice Act of 2013 had similar
language: "If the provisions of this subchapter conflict with a provision of an enforceable
desegregation court order or a district's court-approved desegregation plan regarding the effects
of past racial segregation in student assignment, the provisions of the order or plan shall
govern. " 10
C.
Claims in the Complaint
In Count I of the Complaint, Plaintiff appears to allege that Defendants "improperly
accepted transfers" under the School Choice Act of 1989 in violation of an earlier state-court
settlement - although Wynne School District was a not a party to the settlement. Count II asserts
that Plaintiff was exempt from the School Choice Act of 2013 because it is under an enforceable
desegregation order (McKisick) and that Defendants should pay Plaintiff the "state aide
generated by those students .... " 21 Count III contends that the 2004 Opportunity Choice Act,
which allows transfers from a school that is in academic distress, "conflicts with the provision of
a federal desegregation court order .... " 22 Count IV simply recites the history of the McKisick
case and makes no allegations against Defendants. Count V asserts that the Arkansas school
choice acts conflict with the McKisick 's rulings disallowing "freedom of choice" in the Forrest
City School District. 23 Count VI simply states a claim for unjust enrichment.
19
Ark. Code Ann. 6-18-227(e)(2) (emphasis added).
20
Ark. Code Ann. 6-l8-l906(a)(l).
21
Doc. No. 2-1.
22Jd.
23
Id.
4

Plaintiff seeks "money damages in the form of reimbursement for improperly diverted
foundation and other state school aid as has been or will be paid to [Defendants] and for unjust
enrichment."24 Additionally, Plaintiff requests a finding that the "transfers were in conflict with
both the McKisick Decree and the August 14, 2003 [state-court] order," a finding that
Defendants improperly permitted transfers, and a declaration that no future choice transfers will
be allowed. 25
II.
SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided on purely legal grounds. 26 The Supreme Court has established
guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is the
need for a trial -- whether, in other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party. 27
The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an
extreme remedy that should be granted only when the movant has established a right to the
judgment beyond controversy. 28 Nevertheless, summary judgment promotes judicial economy
by preventing trial when no genuine issue of fact remains. 29 A court must view the facts in the
16
Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56.
21
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
28
Inland Oil & Transport Co. v. United States, 600 F.2d 725, 727 (8th Cir. 1979).
29
Id. at 728.

light most favorable to the party opposing the motion. 30 The Eighth Circuit has also set out the
burden of the parties in connection with a summary judgment motion:
[T]he burden on the party moving for summary judgment is only to demonstrate,
i.e.,"[to point] out to the District Court," that the record does not disclose a genuine
dispute on a material fact. It is enough for the movant to bring up the fact that the
record does not contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is discharged, and, ifthe record
in fact bears out the claim that no genuine dispute exists on any material fact, it is
then the respondent's burden to set forth affirmative evidence, specific facts,
showing that there is a genuine dispute on that issue. If the respondent fails to carry
that burden, summary judgment should be granted. 31
Only disputes over facts that may affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment. 32
III.
DISCUSSION
Plaintiff asserts that a January 16, 1970 order in McKisick is evidence that it is still acting
under a federal desegregation order. Relying on the fact that the McKisick case never declared
Plaintiff unitary, Plaintiff contends that none of the school-choice statutes are enforceable
against it and "no choice transfers of any kind are to be permitted or sanctioned absent approval
of the federal court .... " 33 Accordingly, Plaintiff argues that Defendants were unjustly enriched
when they improperly accepted (and educated) students who transferred from Plaintiff's school
district pursuant to the Arkansas laws.
30
/d. at 727-28.
31
Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt.
Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted)).
32
Anderson, 477 U.S. at 248.
33
Doc. No. 2.
6

For several reasons, Plaintiffs claims are without merit. First, the statute oflimitations
for unjust enrichment is three years. 34 Plaintiff filed the complaint on August 22, 2014. So, any
claims that accrued before August 22, 2011 are barred by the statute of limitations.
(Additionally, as discussed below, the claims for unjust enrichment are without merit.)
Second, Plaintiff is not entitled to equitable relief because of unclean hands. 35
Defendants pointed out that Plaintiff participated in interdistrict transfers like those about which
it now complains; Plaintiff does not deny this allegation. Furthermore, Plaintiff cannot establish
that Defendants were unjustly enriched. The funding that Plaintiff claims unjustly enriched
Defendants was funding for students who actually attended Defendants' school districts.
Ironically, awarding money to Plaintiff for students who did not actually go to its schools would
be unjust enrichment.
Third, Defendants' acceptance interdistrict transfers under the Arkansas Statutes does not
conflict with any desegregation order. McKisick's focus was ensuring that Plaintiff ran a school
district that complied with federal law. At the time, Plaintiff was operating a suspect "school
choice" program, which essentially allowed segregated schools, because the white students
chose to not attend school with the black students under the "school choice" program. McKisick
does not prevent Plaintiff from participating in interdistrict transfers, so long as they remain
aware of their obligation to maintain a desegregated school system, and adjust accordingly. 36 To
34
Ark. Code Ann. 16-56-105.
35
See, e.g., Simmons v. Burlington, C.R. & N.R. Co., 159 U.S. 278, 291 (1895) ("He who
comes into equity must come with clean hands.").
36
Doc. No. 43 (Forrest City "[a]dmits that the McKisick court never addressed
interdistrict student transfers .... ");Doc. No. 41 (Forrest City admits "that to the extent the
McKisick court addressed Choice, it addressed at that time only Intradistrict Choice, because at
that time Interdistrict Choice had not yet emerged as a constitutionally impermissible
impediment to the attainment of unitary status."); Doc. No. 41 (Forrest City admits that
7

the extent McKisick ordered Plaintiff to eliminate "all vestiges of' freedom of choice, "' 37 the
orders did so with respect to intradistrict transfers only. 38 Additionally, McKisick placed
obligations on Plaintiff only; Defendants were not involved in McKisick. Accordingly, Forrest
City has failed to show McKisick conflicts with any of the Arkansas School Choice Acts, or that
Defendants violated McKisick or any other federal law.
CONCLUSION
Based on the findings of fact and conclusions of law above, Defendants' Motions for
Summary Judgment (Doc. Nos. 30, 34) are GRANTED. To the extent that state-law claims
remain, I decline to exercise pendant jurisdiction. Accordingly, any state-law claim is
DISMISSED without prejudice. I find that the school-choice acts do not directly conflict with
McKisick. Additionally, I need not decide whether Defendants' alleged actions violated a 2003
state-court order, because this is within the state court's jurisdiction in Jn re: The Matter of the
Forrest City School District and Palestine Wheatley School District. 39
All other pending motions are DENIED as MOOT (Doc. Nos. 73, 77).
IT IS SO ORDERED, this 7th day of December, 2015 (Pearl Harbor Day).
Isl Billy Roy Wilson

UNITED STATES DISTRICT JUDGE
"interdistrict transfers did not exist at the time the McKisick complaint was filed .... ").
37
Doc. No. 2-1.
38
Plaintiff concedes this fact. See Doc. No. 41.
39
Case No. E.2000-58 (Circuit Court of St. Francis County, Ark.).

Jacksonville-North Pulaski School District

Hochgeladen von

Dokumentinformationen

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Jacksonville-North Pulaski School District

Hochgeladen von

Copyright:

Verfügbare Formate

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 1 of 39

lJ ~~ tll'~ I 111 l ' "!!;:T

IN THE UNITED STATES DISTRICT COURT

LITTLE ROCK SCHOOL DISTRICT

PULASKI COUNTY SPECIAL SCHOOL

MRS. LORENE JOSHUA, ET AL.

THE DULANEY INTERVENORS' MOTION TO INTERVENE

Intervenors Michelle and Lance Dulaney, and their daughter K. Dulaney, a

The Dulaney Intervenors are residents of Jacksonville, Arkansas.

Their 15-year-old daughter, K. Dulaney, attended Pinewood Elementary School in

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 2 of 39

Following first grade, K. Dulaney transferred from Pinewood

Elementary School to Jacksonville Lighthouse Charter School, an open-enrollment

Beginning in the 2016-2017 school year, the Dulaney Intervenors

The Dulaney Intervenors appealed to the State Board of Education

At a hearing on July 14, 2016, the State Board of Education reversed

Cabot School District's denial of the Dulaney Intervenors' school choice

Dulaney Intervenors enrolled K. Dulaney in Cabot High School's Freshman

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 3 of 39

Grounds for Intervention

The Motion to Enforce the 2014 Settlement Agreement filed on July

JNPSD requests specific relief that is adverse to and at the expense of

the Dulaney Intervenors. JNPSD Motion, Doc. 5223, at p. 3,

15; JNPSD Brief,

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 4 of 39

Intervention by the Dulaney Intervenors will not delay any

The Dulaney Intervenors attach and incorporate by reference their

proposed Response to JNPSD's Motion to Enforce 2014 Settlement Agreement,

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 5 of 39

The Dulaney Intervenors file a separate Brief in Support of Motion to

Intervene in support of their motion.

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 6 of 39

All Counsel of Record.

Jess Askew III

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 7 of 39

IN THE UNITED STATES DISTRICT COURT

LITTLE ROCK SCHOOL DISTRICT

PULASKI COUNTY SPECIAL SCHOOL

MRS. LORENE JOSHUA, ET AL.

DULANEY INTERVENORS' RESPONSE TO MOTION TO

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 8 of 39

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 9 of 39

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 10 of 39

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 11 of 39

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 12 of 39

the exemption right, was enshrined into a settlement agreement created

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 13 of 39

trump card by approving the agreement. The seven school districts in

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 14 of 39

contractual obligation that could, upon approval by this Court, supersede

S.W.3d 191 (2008), addressed incorporation of a document (or, in this case,

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 15 of 39

reached a settlement agreement in the Garland County desegregation action,

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 16 of 39

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 17 of 39

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 18 of 39

In any event, this school choice order is enforceable under the

The transfer does not conflict with the JNPSD's desegregation

In the 2013 Act, Ark. Code Ann. 6-18-1906(a) provided:

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 19 of 39

effects of past racial segregation in student assignment, the

Case 4:82-cv-00866-DPM Document 5234 Filed 08/04/16 Page 20 of 39

There is no provision in the parties' desegregation plans as they

Second, none of JNPSD's obligations under the current desegregation