“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Eighth Circuit judges Ralph Erickson and Jonathan Kobes reversed a prior order of a three-judge panel and invalidated a district court ruling modifying consent decrees in Arkansas school desegregation and discrimination cases that sought to prevent problems of white flight from the districts in light of changes to state law. The August 2021 decision was in US v Junction City School Dist.
In the 1970s through the 1990s, four Arkansas school districts (Junction City, Hope, Camden-Fairview, and Lafayette) were made subject to desegregation orders and consent decrees in cases seeking to remedy serious problems of racial segregation and discrimination in their schools. The cases dealt with specific problems concerning segregation in school assignments, segregation in bus routes, within-school segregation of and discrimination against black students, discriminations against black staff, discrimination in school discipline and, in the case of Camden-Fairview, segregative white student transfers to a neighboring, predominantly white school district.
Concerns about potential “white flight” of some white students to other districts in order to avoid desegregation were mitigated by the fact that around the time of the consent decrees, Arkansas law prohibited “segregative transfers” from one school district to another. State law changed in 2017, however, requiring that all school districts permit any student to transfer from its district to another, unless it could show that it is operating under a desegregation plan that “explicitly limits” such transfers. Only Camden-Fairview could qualify even in part under that exemption, so the four districts went to district court to seek to modify their consent decrees so they could avoid transfers that would undermine their desegregation efforts and cause them to violate the decrees.
After a hearing, the district court agreed to modify the consent orders to specifically “prohibit segregative interdistrict transfers.” The state department of education appealed, but a panel of the Eighth Circuit upheld the district court, noting that a district court modification of a consent decree should be upheld unless there was an “abuse of discretion.” The majority found no such abuse of discretion and explained that there was clear “evidence of white flight” from the districts that undermined the decrees and was exacerbated by the state law changes. The decision had been written by Trump judge Erickson. Trump judge Kobes dissented, however, claiming that there was not sufficient evidence of white flight and that the district court improperly exempted the four districts from an “otherwise valid” state law.
The state department of education sought rehearing and, about eight months after its first decision, the panel reversed itself in an unsigned opinion by Trump judges Kobes and Ericson. Adopting much of the view in Kobes’ previous dissent, this time the majority ruled there was an “abuse of discretion” because most of the original orders concerned segregation and discrimination “within each school district” and did not relate to “interdistrict school transfers.” Even assuming that “white flight” had recently become a problem, the majority went on, it was not proven to be a “vestige” of past discrimination and segregation but led to an improper expansion of the decrees to address a new problem. The majority went on to gratuitously suggest that the consent decrees may be “overbroad or outdated” and that the district court should consider “removing these cases from the federal docket.”
Judge Michael Melloy, who was nominated by President George W Bush and was the deciding vote in the ruling that previously upheld the district court, dissented. He explained that the new opinion “fail[s] to accord” proper “deference” to the district court’s findings concerning how the changes in state law were contributing to white flight that undermined the consent decrees, as explained in the original decision. A “plain reading” of the original decrees, he went on, shows that “they were intended to prohibit all forms of racial segregation,” and that the “white flight problem” made much worse by the changes in state law was interfering with proper implementation of the decrees. The new majority ruling, he concluded, improperly “focuses on select details” of the original consent decrees “to the exclusion of their overall purpose in a manner that discounts the context of pervasive segregation the decrees sought to address.”
The disturbing reversal by Trump judges Erickson and Kobes of the decision approving the district court order will harm efforts to combat racial segregation and discrimination in these four Arkansas school districts and sets a troubling precedent concerning micromanagement of district court consent decrees in such cases by circuit judges who are hostile to the continued existence of those decrees in the first place. It is an important reminder of the significance of confirming fair-minded Biden federal judicial nominees who will respect and enforce effective remedies for racial discrimination and segregation in our schools, as part of our fight for our courts.