In the aftermath of release from federal court monitoring and in the midst of a divisive battle over a superintendent, a state mandate has the potential to force some changes in the Little Rock School Board’s threeyear membership terms and board-member election zones.
Arkansas Code Annotated 6-13-631 requires school districts that are released from operating under federal court desegregation orders to comply with state and federal laws on school board elections.
Specifically the state law calls for five-year staggered terms of office for school board members and requires that within 180 days of a district’s release from court supervision that the district create school board election zones using the most recent decennial census data.
The Little Rock School District, which already has election zones based on the 2000 Census data, was released from decades of federal court supervision on Feb. 23. That court release is being appealed to the 8th U.S. Circuit Court of Appeals. Should the district have to adjust its election zones, the 180-day deadline would be Aug. 22. However, another provision in the same law says any adjustment to zones must be completed 90 days before the regular school election. That would make the deadline June 20, before this year’s Sept. 18 election.
June 20 is also the first day that people interested in run- ning for the School Board this year can file as candidates in the Pulaski County clerk’s office.
Failure to comply with all aspects of the state law could cost the state’s largest school district 20 percent of its state funding, the statute says. That penalty could be as much as $14 million in a district that received $70 million in state funding this fiscal year.
School Board member Baker Kurrus recently brought the state law to the public forefront and asked for legal advice on how the election zones and School Board term provisions might apply.
“I’m hopeful that we don’t have a problem,” said Kurrus, whose board term expires in September, as does that of board member Mike Daugherty. “But with that kind of penalty attached to it, you have to get it up on the radar screen.”
State Rep. Daniel Greenberg, R-Little Rock, late last month asked for an attorney general’s opinion on the district’s behalf.
Attorney General Dustin Mc-Daniel responded Wednesday in a letter in which he declined to give an opinion on the application of the statute to the Little Rock district. He said his office has a long-standing policy against opining on matters that are the subject of pending litigation, and he noted the pending appeal of the school district’s release from federal court supervision.
“At this time, that appeal has not been resolved,” the letter said. “Over the long course of the desegregation litigation, issues involving the electoral zones of the District have been within its ambit.”
The attorney general further said that the district’s questions about the applicability of the law “may involve determinations of fact and/or review of prior court orders or settlement agreements that can only be properly undertaken by the District with the aid of its counsel, or resolved in an adversary proceeding before the judicial branch. I do not serve as legal counsel for the LRSD and am thus not the proper official to provide the requested “guidance” to the District on this issue.”
Attorney general opinions, though lacking the authority of a court ruling, are generally given much weight by state and local officials who request them or by anyone who looks for legal guidance absent a court opinion on a particular subject. State law even directs state officials in some instances to seek the attorney general’s opinion and requires him to give it.
Changes in the Little Rock district’s election zone boundaries or in the length of School Board members’ terms could materially change the composition of the board that is now racially and bitterly split over the district’s leadership.
The School Board voted 4-3 on May 24 to buy out the remaining two years of Superintendent Roy Brooks’ contract, after weeks of debate on whether to keep, suspend, fire or buy him out.
Brooks is scheduled to leave in mid-August before the September School Board election. The board has neither discussed who replaces Brooks nor set a timeline for picking a successor.
The state statute requires school districts that have 10 percent or greater minority-group populations as recorded in the latest decennial census to elect their school board members from single-member election zones, or from a combination of single-member zones and atlarge zones.
The zones must be formed in compliance with the federal Voting Rights Act of 1965, the law says. The Little Rock district has seven single-member election zones.
The law also requires fiveyear terms for School Board members in contrast to Little Rock’s current three-year terms. More specifically, the law says that after zones are established, an election must be held and then members of the new board must determine their initial terms by drawing lots so that one or two board member terms expire and are filled each year. In other words, one or more board members may draw initial one-year terms; others may draw two-, three-, four- or five-year terms.
Some of the questions yet to be answered regarding the application of the statute in the Little Rock district include:
Do Little Rock’s existing election zones — last modified in 2001 — comply with the federal Voting Rights Act? And, if they don’t, can they be made compliant before the Sept. 18 school election?
Do Little Rock School Board terms need to be extended from the current three years to five years and, if so, how?
Do all seven School Board seats need to be opened to election this September?
Do Little Rock’s current election zones — four majority-black and three majority-white in a district in which the overall population is majority white — comply with previous court orders?
Is the district, in fact, really released from federal court supervision while its unitary status is being appealed to the 8th U.S. Circuit Court?
The Joshua intervenors, who represent the class of all black students in the 24-year-old school desegregation lawsuit, are appealing the Feb. 23 unitary-status ruling to the 8th Circuit. If the appeal is successful and the declaration of unitary status is overturned, the district could be returned to court supervision.
But Tracey George, a law professor at Vanderbilt University at Nashville, Tenn., who has expertise in federal court procedures, said an appeal of the court order does not necessarily stop the court order from going into effect or triggering the requirements of the state law.
“A federal court order takes effect when the order is entered on the federal court docket sheet — unless there is a second order by a judge suspending the first order until one or more appeals to higher courts are completed,” George said in a telephone interview.
“Based on the federal rules of procedure, and here we are talking about the federal rules of appellate procedure, orders take effect absent a decision by either the district court or the Court of Appeals to stay the order pending appeal. If no such stay has been requested or granted in this case, then there is no reason to believe they have extra time” to comply with state requirements, she said about the school district.
As to whether the Little Rock School District’s existing School Board election zones comply with the federal Voting Rights Act, which is a requirement of the state statute, Tim Humphries, legal counsel in the Arkansas secretary of state’s elections division, said district leaders and their attorneys must make that initial determination.
“If the district’s view is disputed, the issue could wind up in court,” Humphries added.
Section 2 of the landmark 1965 Voting Rights Act is the basis of single-member election zones as a way to help blacks and other racial or ethnic minority groups elect their preferred candidates.
“No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” the section reads in part.
A violation occurs, the act continues, if members of a class protected by the law have less opportunity than others in the electorate to participate in the political process and to elect representatives of their choice. However, “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”
Jim McKenzie, executive director of Metroplan, a council of local governments and the agency that prepared election zone maps for the Little Rock district in 2001, said the district’s current zones were drawn in compliance with the federal law.
“It would be pretty silly to not do it in accordance with the Voting Rights Act,” McKenzie said of the work done by a staff demographer.
“We basically took the existing [election zones] and then played around the margins of the existing [zones] so you weren’t gerrymandering anyone out of a seat,” McKenzie recalled. “We made the changes incremental rather than radical at the direction of the superintendent. We then presented the three alternatives to the School Board for their consideration.”
The current zones — as adopted by the School Board in 2001 — resulted in four majority-black zones and three majority-white zones in a city in which the population in 2000 was 55.1 percent majority white and 40.4 percent black, according to U.S. Census Bureau figures.
The school district is slightly smaller in area than the city. The school district population was 54.5 percent white and 41 percent black, according to a Metroplan analysis of the 2000 Census figures.
In contrast, the Little Rock district student enrollment was then and is now 68 percent black and 32 white and other, according to enrollment figures tracked by the federal Office of Desegregation Monitoring.
The Little Rock district was first divided into single-member election zones in 1986 when the district, in response to a court order, absorbed southwest Little Rock from the neighboring Pulaski County Special School District.
The original seven zones — two with majority-black populations — were approved by the federal court. When the zones were adjusted in 1993, on the basis of the 1990 Census, they were challenged, and again they were approved by the federal district court and the appeals court as meeting the federal Voting Rights Act requirements.
The zones were adjusted in 2001 to accommodate population shifts reflected in the 2000 Census. Those 2001 changes weren’t challenged in court.
McKenzie said the change in the number of majority-black School Board election zones from two in 1993 to four in 2001 was not planned.
“We didn’t try to make black districts or white districts,” McKenzie said.
Humphries declined to speculate on whether the four majority-black School Board election zones now in place put the Little Rock district out of compliance with earlier federal court orders that approved just two majorityblack zones. But, in general, he said, that would not be the case.
“Taken by itself, without the context of any facts that might be developed either prior to or during litigation ... it is not unlawful to have a majority of majority-black population zones in a district with a mostly white population,” Humphries said.
“Many legitimate factors such as keeping neighborhoods intact, incumbent protection, mindfulness of political and natural boundaries, and undoubtedly others ... could have been considered by the board in adopting such a plan,” he said.
Laughlin McDonald of Atlanta, who as a lawyer and director of the American Civil Liberties Union’s Voting Rights Project, has testified in Congress and written three books about voting rights, agreed.
“There is nothing that says that whites always have to have the majority of the districts if they have the majority of the population,” McDonald said.
“There is nothing to prevent having a majority of minority districts. I think it depends on what the demographics are. There are all kinds of things that go into drawing districts — keeping communities and precincts and other jurisdictional subdivisions intact. You can have a jurisdiction with a slight majority-black population, and the majority of the districts that you draw could conceivably be majority-white.”
McDonald also said he doubted that a 1990s court order approving two majority-black zones would be binding on a school district into the future.
“I think these things aren’t written in stone — when a court enters a remedial plan, it is based on the demographics that exist at the time that it acts,” he said. “If demographics change, I think the jurisdiction would not only be free to alter the composition but have an obligation to do so.”
John Walker, a Little Rock civil-rights lawyer who represents the Joshua intervenors in the 24-year-old desegregation lawsuit, argued that the state law on school board elections does not apply “in any case” to the Little Rock district because the Little Rock district’s involvement in the federal desegregation case — which includes the 1986 and 1993 litigation over school board election zones and the Voting Rights Act — takes precedence over the state law.
The litigation on election zones was part of the desegregation lawsuit. And, while the school district has been released from court supervision in that case, the case still exists. The Little Rock district remains the plaintiff until the Pulaski County Special and North Little Rock school districts are also released from court monitoring.
The statute does list scenarios in which a school district is exempt from its provisions. Those include:
A school district that is operating under a federal court order enforcing school desegregation or the federal Voting Rights Act of 1965 as amended.
A school district that has a zoned board meeting the requirements of the federal Voting Rights Act of 1965, as amended.
A school district that a federal court has ruled is not in violation of the federal Voting Rights Act of 1965, as amended, so long as the court order is in effect.
Chris Heller, an attorney for the school district, also pointed to the exception in the law for districts that are in compliance with the Voting Rights Act and said there is an argument that Little Rock is still subject to the exception.
“I thought that was what the attorney general would advise us,” Heller said in response to the attorney general’s decision not to issue an opinion. “It is possible that the district still comes within an exception, and it is possible some part of the state law might apply to the district. There is a significant financial question that depends on getting the answer right,” he added about the potential $14 million penalty for noncompliance.
“Maybe we can ask the Arkansas Department of Education to agree that we aren’t subject to any reduction in our state aid,” Heller said.
Former state Rep. Dean Elliott of Maumelle was the author in 2001 of the legislative language requiring districts that are newly released from federal court monitoring to comply with the federal Voting Rights Act and state law in regard to school board election zones.
Elliott said he was focusing not on Little Rock but on the Pulaski County Special School District and the desire of Maumelle residents at the time to have a School Board member living in that community.
Kurrus, the Little Rock board member, said he hopes the law won’t force immediate changes in the district — particularly in the lengths of board member terms. Still, he believes that some answers are necessary.
“If it didn’t have such a draconian penalty in there, you could say, ‘Golly, just wait and see what happens.’ If somebody objects, we would deal with it,” he said.
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