Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

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1 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION DARRIN HARDY; JULIE HARDY; BENJAMIN LYNCH, SR.; SUE WALLACE; JOHN WALLACE; RON TEAGUE; KATHY TEAGUE; KAREN MEARS; JAMES MEARS; DON HOGAN; AMANDA HOGAN; VIANNA REYNOLDS; JENNIFER STELL; DOUG STELL; JANICE FOWLER; RANDY FOWLER; TABETHA JOHNSON; JODY CHADWICK; MARK DRAPER; JENNIFER DRAPER; PENNY MCINROE; RHONDA RICHARDSON; TAMARA GRIFFIN; LANA HILL; RONNIE HILL; GEORGE HATHCOCK; JULIE HATHCOCK; KAREN WEST; PATRICIA BROWN; EARNEST REYNOLDS; JENNA JORDAN; and VIOLET CRABTREY; c/k/a PARENTS FOR SCHOOL CHOICE PLAINTIFFS v. Civ. No MALVERN SCHOOL DISTRICT; OUACHITA SCHOOL DISTRICT; GLEN ROSE SCHOOL DISTRICT; BISMARK SCHOOL DISTRICT; MAGNET COVE SCHOOL DISTRICT; and ARKANSAS STATE BOARD OF EDUCATION DEFENDANTS O R D E R On January 6, 2009, Plaintiffs in the above-captioned case 1 filed their Third Amended Complaint. (Dkt. 41). Plaintiffs allege that the race-based restriction on the ability of students to transfer school districts contained in the Arkansas Public School Choice Act of 1989, Arkansas Code Annotated , is unconstitutional. On February 27, 2009, this Court directed the parties to provide briefing on issues relating to subject matter jurisdiction. Based on the legal authority provided to the Court and for the reasons reflected in this Order, we conclude: (1) this 1 The Court uses the term Plaintiffs in reference both to the named Plaintiffs and their minor children, whose school attendance is at issue.

2 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 2 of 17 Court lacks jurisdiction over the Arkansas State Board of Education, and it is DISMISSED WITH PREJUDICE; (2) officialcapacity Defendants Brian Golden, Deborah Smith, Jessie Clark, Lynn Wright, Kevin Carr, Brian Coston, Vonda Cranford, and Don Williams are DISMISSED WITH PREJUDICE; (3) the Ouachita, Glen Rose, Bismark, and Magnet Cove School Districts are DISMISSED WITHOUT PREJUDICE; (4) Plaintiffs have standing to seek redress for the alleged violation of their Constitutional rights; (5) the Malvern School District has moved for judgment on the pleadings based Plaintiffs alleged failure to state a claim against it, and Plaintiffs have fourteen (14) days from the date of this Order to respond; (6) the Court declines to exercise supplemental jurisdiction over the crossclaims filed by the Malvern School District against the Ouachita, Glen Rose, and Magnet Cove School Districts (dkt. 54, 55, & 57), and those claims are DISMISSED WITHOUT PREJUDICE; and (7) the Malvern School District s motion for leave to file a third party complaint (dkt. 69) is DENIED. The Court will address each of these holdings in turn. I. Arkansas State Board of Education Plaintiffs Third Amended Complaint names the Arkansas State Board of Education, a division of the Department of Education of the State of Arkansas, as a Defendant in this action. The Board of Education contends that it is immune from suit pursuant to the Eleventh Amendment to the United States Constitution. The Eleventh Page 2 of 17

3 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 3 of 17 Amendment provides that the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST. amend. XI. Based on principles of sovereign immunity, the United States Supreme Court has interpreted the Eleventh Amendment as also prohibiting suit against an unconsenting state by its own citizens. Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). It is well-established that this immunity extends to actions brought against a state or its agencies under 42 United States Code Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997). In the present case, Plaintiffs proceed against the Arkansas State Board of Education. As a division of the state of Arkansas and because it is not a person for the purposes of Section 1983, the Board of Education is immune under the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 77 (1989) (holding States not persons under Section 1983); Morstad v. Dep t. of Corrs. & Rehab., 147 F.3d 741, 743 (8th Cir. 1998) (state agencies immune). Accordingly, the Arkansas State Board of Education is dismissed with prejudice. Plaintiffs have twenty (20) days from the date of this Order to properly proceed under Section 1983 against the members of the State Board of Education should they so elect. Page 3 of 17

4 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 4 of 17 II. Official-Capacity Defendants Official-capacity Defendants Brian Golden, Deborah Smith, Jessie Clark, Lynn Wright, Kevin Carr, Brian Coston, Vonda Cranford, and Don Williams seek an order formally dismissing them from this lawsuit. In their Second Amended Complaint, Plaintiffs named these officers of the Malvern School District ( Malvern ) as Defendants. (Dkt. 19). However, none of these school officials are named in Plaintiffs Third Amended Complaint. The Third Amended Complaint neither mentions nor makes any allegation against these Defendants. Further, under Arkansas Code Annotated (a), [e]ach school district in the state shall be a body corporate... and may sue and be sued in its corporate name.... Accordingly, because Malvern is a Defendant, there is no indication that these district officers need to be parties to the suit in order to afford the relief sought by Plaintiffs, and they are dismissed with prejudice. III. Ouachita, Glen Rose, Bismark, and Magnet Cove School Districts In its February 27, 2009 Order, this Court instructed Defendants Ouachita, Glen Rose, Bismark, and Magnet Cove School Districts (collectively nonresident districts ) to address whether their assertion that the school transfer provision of Arkansas Code Annotated (f) is unconstitutional has any impact on the Court s jurisdiction in light of the case or controversy requirement of Article III of the United States Constitution. In response, these districts only contended that Plaintiffs have Page 4 of 17

5 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 5 of 17 standing to bring their claim. However, justiciability and the power of this Court to hear a particular case involve more than the doctrine of standing. In their Third Amended Complaint, Plaintiffs seek the following relief against the nonresident districts:.... B. A declaratory judgment by the Court that defendants policy of considering race in their Arkansas Public School Choice Act decisions violates the Fourteenth Amendment to the United States Constitution, Title VII of the Civil Rights Act of 1964, and the equal protection and illegal exaction provisions of the Arkansas Constitution; C. Declaratory judgment prohibiting Defendants racebased student admission and school choice plan and the disbursement of public funds due to violation of federal and state law, specially the federal and state equal protection provisions, Title VII of the Civil Rights Act of 1964, and Illegal Exaction provision of the Arkansas Constitution (Arc. 16, 13); D. Declaratory judgment that the portion of Arkansas Stat. Ann , specially Section (f)(1), mandating race-based school choice violates equal protection and Title VII of the Civil Rights Act of 1964 and is unconstitutional under both the federal and state constitutions and laws; E. An injunction permanently prohibiting defendants, Glen Rose, Magnet Cove, Bismark, and Ouachita from using race as a factor in student admissions plans in Arkansas public schools;.... H. Attorneys fees and costs pursuant to 42 U.S.C. 1988, the Illegal Exactions provision of the Arkansas Constitution, and any other applicable statute; I. Any other relief that is appropriate and just. Page 5 of 17

6 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 6 of 17 The fundamental issue in this case, from the standpoint of federal jurisdiction and upon which all other entitlement to relief turns, is whether Arkansas Code Annotated (f) violates the Equal Protection Clause of the United States Constitution. In accordance, it is Plaintiffs request for declaratory judgment pursuant to the Declaratory Judgment Act, 28 United States Code 2201, and Federal Rule of Civil Procedure 57 that must form the basis for this Court s analysis of whether there is an Article III case or controversy. Because Plaintiffs and the nonresident districts are not truly adverse, the Court cannot properly evaluate and declare the rights of these parties vis-a-vis one another. Federal courts have limited subject matter jurisdiction and can only preside over cases to the extent permitted by the Constitution and duly enacted statutes of the United States. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). As a result, a federal court cannot issue declaratory judgment unless the case involves an actual controversy between adverse parties in an adversarial proceeding. Vorbeck v. Schnicker, 660 F.2d 1260, 1265 (8th Cir. 1981). The test to determine whether there is an actual controversy within the meaning of the Declaratory Judgment Act is whether there is a substantial controversy between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Marine Equipment Management Co. v. United Page 6 of 17

7 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 7 of 17 States, 4 F.3d 643, 646 (8th Cir. 1993) (quoting Caldwell v. Gurley Refining Co., 755 F.2d 645 (8th Cir. 1985)). This determination must be made on a case-by-case basis. Golden v. Zwickler, 394 U.S. 103, 109 (1969). Based on the circumstances of a particular case, the court has discretionary power to determine whether to exercise jurisdiction. State Farm Mut. Auto. Ins. Co. v. Bonwell, 248 F.2d 862, 865 (8th Cir. 1957). Plaintiffs and the nonresident districts do not have adverse interests in this litigation; this is the case for at least two reasons. First, Plaintiffs claim that Arkansas Code Annotated (f) is unconstitutional under the Equal Protection Clause of the United States Constitution. The nonresident districts freely concede this point. Their answers to Plaintiffs Third Amended Complaint demonstrate that they will not advocate a contrary position, i.e. that Section (f) is constitutional. Second, the pleadings in this case demonstrate that the independent interests of the nonresident districts are actually furthered by the determination that Arkansas Code Annotated (f) is unconstitutional. This is because the funding of these school districts is tied to the number of students enrolled therein. Naturally, the funding levels of these districts will increase with the number of students that are able to transfer to them. Thus, both legally and factually, Plaintiffs and the nonresident districts are not adverse. This Court cannot issue declaratory Page 7 of 17

8 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 8 of 17 judgment based on the consent of the parties. Therefore, the Ouachita, Glen Rose, Bismark, and Magnet Cove School Districts are dismissed without prejudice. IV. Standing Defendant Malvern vigorously contends that Plaintiffs lack standing to bring this constitutional challenge to the Arkansas Public School Choice Act. To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an injury-in-fact, (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. Pucket v. Hot Springs School Dist. No. 23-2, 526 F.3d 1151, 1157 (8th Cir. 2008). Malvern asserts that Plaintiffs do not have standing based their alleged lack of a cognizable injury, inability to obtain redress, and failure to exhaust administrative remedies. 2 Based on the allegations in their Third Amended Complaint, Plaintiffs have standing to sue. 2 Malvern also contends that it is an improper party to this litigation and requests dismissal under Federal Rule of Civil Procedure 12(b)(6). The Court notes that to the extent that Malvern s 12(b)(6) argument can be construed as a causation argument based on Constitutional standing principles, the argument is rejected. As a matter of standing, a plaintiff must show "a causal connection between the injury and the conduct complained of--the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court...." Republican Party of Minn., Third Congressional Dist. v. Klobuchar, 381 F.3d 785, 792 (8th Cir. 2004) (citing Lujan, 504 U.S. at ). Under such a definition, a nexus between a defendant s conduct and the plaintiff s injury may exist, though the legal claim against the defendant fails by application of the Federal Rules. Page 8 of 17

9 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 9 of Injury-in-Fact Malvern contends that Plaintiffs lack standing to sue because none of the Plaintiffs have sought school transfer under Arkansas Code Annotated (b) and been denied due to their race under Section (f). As such, Malvern claims that Plaintiffs have not suffered injury-in-fact. This argument fails because it overstates the injury requirement for standing purposes and is contrary to the allegations in Plaintiffs Third Amended Complaint. Plaintiffs have suffered injury-in-fact. Injury-in-fact is an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The United States Supreme Court has made clear that as a matter of Equal Protection, a congnizable injury is suffered when an individual is forced to compete in a race-based school admissions system that may cause prejudice. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S. Ct. 2738, 2751 (2007). The Parents Involved precedent is instructive. In Parents Involved, the Supreme Court addressed the argument set forth by the Seattle School District ( Seattle ) that the plaintiffs lacked standing to challenge Seattle s use of a racebased tiebreaker because plaintiffs could not claim imminent injury. Under the system implemented by Seattle, incoming ninth graders were permitted to rank the high school they wanted to Page 9 of 17

10 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 10 of 17 attend in order of preference. Id. at Because some schools were more popular than others, the district used a series of tiebreakers in order to determine which school a student would attend. One of the tiebreakers was based on the school s racial composition. Id. Under this tiebreaker, a particular school s racial composition could not deviate from the district s overall composition by more than ten percent. If a school s racial composition became too unbalanced, the racial tiebreaker was used in favor of those students who would bring the school s racial composition within the district s acceptable range. Id. Seattle argued to the United States Supreme Court that the plaintiffs did not have standing because they had not enrolled in a Seattle public school and as a result, had not sought admission to a school in which the student s race would operate to his or her detriment. Accordingly, Seattle claimed the injury was speculative. Parents Involved, 127 S. Ct. at The Supreme Court rejected this argument. It reasoned that the Constitutional injury is not eliminated by the fact that some students may not actually be denied admission to the school of their choice as a result of their race. Id. This is because the Equal Protection injury stems not merely from the denial of admission based on race. Rather, a cognizable injury is inflicted when a plaintiff is forced to compete in a race-based system that may prejudice the plaintiff.... Id. at Page 10 of 17

11 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 11 of 17 Based on the previous, it is clear that Malvern s argument that Plaintiffs have not suffered congnizable injury overstates the injury required for a plaintiff to have standing. Plaintiffs allege in their Third Amended Complaint that at least some of the students have applied for transfer under Arkansas Code Annotated (b) and have therefore been, or imminently will be, subject to the race-based requirements of Section (f). Accordingly, Plaintiffs allege they are being forced to compete in a race-based system to their detriment. One does not have to await the consummation of threatened injury to obtain preventive relief. Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 593 (1923). Finally, and contrary to Malvern s assertion, Plaintiffs allege that at least one of the students in this suit has actually been denied admission to a nonresident district based on his race. [W]here one plaintiff establishes standing to sue, the standing of other plaintiffs is immaterial. National Wildlife Fed n v. Agrical. Stabilization & Conservation Serv., 955 F.2d 1199, 1203 (8th Cir. 1992); see also Bowen v. Kendrick, 487 U.S. 589, 620 n. 15 (1988). Thus, Plaintiffs have alleged injury for the purposes of standing. 2. Redressability Defendant Malvern contends that Plaintiffs claim is not justiciable because Arkansas Code Annotated (f) is not severable from the rest of the Arkansas Public School Choice Act, Page 11 of 17

12 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 12 of 17 and therefore, Plaintiffs requested relief cannot be granted. Under Malvern s argument, proper analysis of the relief sought by Plaintiffs must take place against the backdrop of Arkansas Code Annotated , which basically states that unless a student has legally transferred to another district, the student must go to school in the district where he or she resides. As stated, Arkansas Code Annotated provides a basis for legal transfer to a school district other than the one of residence. Section (f) injects race into the analysis by stating that: (f) The provisions of this section and all student choice options created in this section are subject to the following limitations: (1) 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.... Based on the previous, the issue according to Malvern becomes whether Section (f) can be severed from the rest of Section If the determination is that it can be severed, Plaintiffs can seek transfer absent the race-based restriction. If the determination is that it cannot be severed, all of Section must be struck and the legal transfer mechanism would be destroyed, leaving only the default rule in Section that students must attend school where they reside. Malvern s argument misstates the injury of which Plaintiffs complain. As discussed above, the injury allegedly suffered by Plaintiffs and the relief that Plaintiffs seek in order to redress Page 12 of 17

13 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 13 of 17 this injury relates to the violation of their Constitutional rights by being forced to compete in an admissions system that utilizes race in an allegedly impermissible way. As a result, this injury is subject to redress irrespective of whether Section (f) is severable from the remainder of Section This is because declaration that Section is unconstitutional in its entirety would necessarily prevent Defendants from applying Section (f). Accordingly, students would no longer be forced to compete in a race-based school admissions system. Parents Involved, 127 S. Ct. at Thus, Plaintiffs injury is subject to redress. 3. Exhaustion of Administrative Remedies Defendant Malvern asserts that this Court lacks jurisdiction because Plaintiffs have not exhausted their administrative remedies. Exhaustion is presumed to be non jurisdictional unless Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision. Ace Property & Cas. Ins. Co. v. Federal Crop Ins. Corp., 440 F.3d 992, 997 (8th Cir. 2006). Where the statutory or regulatory framework in question does not require the exhaustion of administrative remedies before obtaining judicial review, whether to require exhaustion is within the discretion of the district court. State of Missouri v. Bowen, 813 F.2d 864, 871 (8th Cir. 1987). Exhaustion is not required in this case. Page 13 of 17

14 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 14 of 17 A party may be excused from exhausting administrative remedies if the complaint involves a legitimate constitutional claim, if exhaustion would cause irreparable harm, if further administrative procedures would be futile, or if the issues to be decided are primarily legal rather than factual. Ace Property & Cas. Ins. Co., 440 F.3d at 1000 (internal citation omitted). Most relevant in the present case is the legal issues exception. Under this narrow exception, exhaustion is not required where the issues in question are of a legal nature and, therefore, beyond the realm of an administrate agency. Id. at 1001; see Bowen, 813 F.2d at 871 (excusing exhaustion because development of a factual record was unnecessary to the court's decision on legal issue); see also Department of Human Services v. Howard, 367 Ark. 55, 60, 238 S.W.3d 1, 4 (2006) (stating that exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists, where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. ). Arkansas Code Annotated (b)(2)(B)(i) states: Any student who applies for a transfer under this section and is denied a transfer by the nonresident district may request a hearing before the State Board of Education to reconsider the transfer. Section (g) states: The state board shall be authorized to resolve disputes arising under subsections (b)-(f) of this section. Page 14 of 17

15 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 15 of 17 As demonstrated, a permissive procedure of administrative review exists under Section However, because the statute does not make exhaustion a jurisdictional prerequisite, the Court has discretion. In evaluating discretion, it is important to note that the relief sought by Plaintiffs is not available in administrative review because the Arkansas Department of Education cannot declare Section (f) unconstitutional. Further, because the determination of the constitutionality of the statute is a legal issue, the development of an administrative record would do little to assist in this determination. Accordingly, because an administrative agency cannot provide adequate relief and because the constitutionality of Section is a legal issue, exhaustion is not required. V. Failure to State a Claim In its response to this Court s Order requesting briefing on jurisdictional issues, Defendant Malvern asserts that it is an improper party to this lawsuit and moves for dismissal under Federal Rule of Civil Procedure 12(b)(6). Under Malvern s contention, Plaintiffs claim Constitutional injury as the result of the enforcement of Arkansas Code Annotated (f) by the nonresident school districts, and Malvern cannot be held liable for Plaintiffs injury because it plays no role in the transfer procedure set out in the statute. In other words, Malvern claims that its enforcement of Arkansas Code Annotated , Page 15 of 17

16 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 16 of 17 requiring that students attend school in the district where they reside unless granted a legal transfer, is not the source of Plaintiffs Constitutional injury, and therefore, Plaintiffs have not stated a claim against it. It is well-settled that a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) will not be considered after the defendant has filed an answer. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). Malvern has answered Plaintiffs Third Amended Complaint. However, under the precedent of this Circuit, the Court can treat a motion to dismiss as one for judgment on the pleadings. Westcott, 901 F.2d at The Court construes Malvern s motion to dismiss as one for judgment on the pleadings. Plaintiffs have fourteen (14) days from the date of this Order to respond. VI. Conclusion For the foregoing reasons, this Court holds that (1) the Arkansas State Board of Education is DISMISSED WITH PREJUDICE; (2) official-capacity Defendants Brian Golden, Deborah Smith, Jessie Clark, Lynn Wright, Kevin Carr, Brian Coston, Vonda Cranford, and Don Williams are DISMISSED WITH PREJUDICE; (3) the Ouachita, Glen Rose, Bismark, and Magnet Cove School Districts are DISMISSED WITHOUT PREJUDICE; (4) Plaintiffs have standing to seek redress for the alleged violation of their constitutional rights; and (5) the Malvern School District has moved for judgment on the pleadings. Page 16 of 17

17 Case 6:08-cv RTD Document 76 Filed 05/11/09 Page 17 of 17 Based on this Court s dismissal of Ouachita, Glen Rose, and Magnet Cove School Districts from Plaintiffs Constitutional claim, the Court declines to exercise its supplemental jurisdiction over the Malvern School District s Arkansas state law claims against those school districts, and the Malvern School District s crossclaims (dkt. 54, 55, & 57) are DISMISSED WITHOUT PREJUDICE. Because the state law claims by Malvern against neighboring school districts will not be decided in this case, the Malvern School District s motion for leave to file a third party complaint against the Poyen School District (dkt. 69) is DENIED. Plaintiffs have twenty (20) days to properly proceed against the members of the Arkansas State Board of Education should they so elect and fourteen (14) days from today to respond to the Malvern School District s motion for judgment on the pleadings. IT IS SO ORDERED this 11th day of May, /s/ Robert T. Dawson Honorable Robert T. Dawson United States District Judge Page 17 of 17