two communities trying to survive in the state of arkansas in a in the midst of a concert of a consolidation consideration the two small districts one is we have set forth that history in our brief and won't repeat it i think it shows what i have said we are here because we think that the district court erred in placing the burden of proof upon upon wheatly in this desegregation kit case it is our contention as we've argued in the brief that the standard that the court should have followed was set forth in freeman versus pitts and that the judge of plaid the wrong standards this is not a change circumstance case what about the last paragraph of her order do you think that captures the  and set forth in the consent decree and at the vestiges of past discrimination have been eliminated to the extent practicable with now is that the standard from freeman that you say should apply well i think that is the standard that should apply but the point is that the the the defendants were not required to assume the burden of proof at all and we were in the position of being the ones to go forward and meet the proof we do not believe that they could have met the burden of proof and that the so called good faith standard is one that we could could could debate but i want to call your attention just caution to her opinion which is an  evolved the judge calls the hearing and she says well let me hear what you have to say and we had a position where we have to go forward without conduct going to discover this is not a motion for  that and and so we are in the position of going forward on a burden of proof without having so like an ambush without having any opportunity for discovery she points up  appendix number and footnote number five on page three sixty two of the appendix plaintiffs requested an opportunity for discovery prior to the hearing the court decided to proceed with the hearing to determine at a later date whether further discovery was necessary although plaintiffs repeat their general complaint that they were not allowed to tamper discovery before the hearings planters do not indicate what candid discovery they steal more or need to do to fully present their arguments therefore the court found kind of reason not to rule on the matter based on the evidence presented at the hearing so here we are going into a hearing where the defendants a filed a motion we've told the court in advance we want to be able to prepare for it the course says let me hear so we are and we are disadvantaged so we have to put we have to assume the burden of proof and then we go forward on the basis of what we know without without any proof so what we want got any supreme court case says rufo doesn't apply to it to a desegregation degree those have a different standard than all the other degrees federal consent decrees in the world will roof or doesn't place the burden of proof on the plaintiffs in this kind of the burden of proof to show proof of the changed circumstances on the party this object wants the decree modified i think that's that's without question and i don't think that that the district court is understood or misapplied that  well i thirdly well i think that you they have to prove certain things and we have set them in the can become in league in our response we have to show our lives they have to show that they are committed to desegregate education that includes educational present simply because that was the agreement they can't simply just terminate the agreement simply because they want to that is what they have been trying to do from day one after they entered into the agreement that we have shown very clearly from day one day five day ten day twelve if trad for the same reasons and here's the problem that we had we explained to the court and it's in the record we explain to the court that this district is in effect a district which does not demonstrate its commitment to desegregation it's just the country it's a district and a small community which is around a lot of other majority african american communities and they hold themselves open as a white flight district so that the people who attend the public schools of those districts can come to this particular district and that does not commit that does not demonstrate a commitment to desegregated education especially where the schools that are in large that were in the black community are largely black community are the ones being closed that shows no no commitment no that's the that's the standard friedman the pitch that's not set forth and no i mean here's the problem there were a couple we believe there were several hundred of the five hundred students who attend this school who were coming from other communities like fairy forrest city mariana brinkley just coming there but so that they could have majority presence rather than being majority african american school so we don't know what that was but we do know this we know that those two schools school districts were thirteen miles apart the centers of the city but that doesn't show how many were black and how many were white and the superintendent had been principal of the school he came on and he decided that he would go in and do make the same arguments and present some different kind of evidence there is nothing we will time to get the following with this was this was after the hearing your own right i'm asking at that point did you well we we did explain to we told the court that we needed an opportunity to address the situation of the facts that had been presented in totality we didn't have to say but we want to go and deal with that particular fact another particular fact this is not quite like some of the burden of proof cases you just heard in this case if you are going to eliminate a twenty year decree majority people trying to eliminate the school as they started off doing after the entered into the consent decree you have to be in a vision position to go and look at what all the facts are now not just saying give us the address  standard the question is whether they were this district was committed to convey to the residents of the wheatley area that they the desegregation and continuation of  district morning i guess in response to the questions or the argument made by mr walker concerning the discovery issue this was no real issue in my judgment before the lower court the motion or terminate the consent decree was filed early in the summer of two thousand and twelve and this wasn't a like a request for injunctive relief or the court immediately heard the case to case didn't get heard until october or and but in the district's case was really no open book the if you look in the record the motion to modify or or terminate the consent decree filed by the district was really an open book and explained with exhibits and in much detail  with the assistance of a demographer and and other evidence provided by the district the factual basis for the district's argument that it should be allowed to to move the middle school grades five six and seven or five six seven eight  made no requests after the district began taking depositions of some witnesses in order to present that evidence by deposition at trial nothing of the sort nor any specifics ever mentioned know referenced the you know significant jurisprudence in this court and supreme court you know in determining that the consent decree in this case should be modified or terminated but the roof standard i think you know that the guidance given by the supreme court and desegregation case you know a different one than the ones in plastic county obviously but it's a school desegregation case i think judge wright was mindful of that standard she referred to it and found that the district had met it and you know we argue that the disregard met that standard because you know just look at the evidence that the district provided as to what happened this is not a district where separate schools are be running the vestiges of discrimination have been removed evidence what part of the record should i read for witnesses or documents this effectively addressing that question well the the superintendent testified extensively for three four hours that morning about the reasons why the school district to the school need to be moved and talking about you know that was the school in the middle school over whitley is the only school in the district that's in school improvement and how the high school having all three campuses high school middle school in the elementary grades on one campus would allow the district to leverage all the significant resources that no child left behind the academic accountability laws that have been passed since the like you cases in arkansas the student testing laws that have been passed since no child left behind in lakeview how the district could leverage leverage all those initiatives you know having all the teachers on one campus increasing by decreasing the amount of busing time you would increase the amount of rest time time to nurse the bodies time to study you know that would it would just be an efficient means of doing it and it's the way that all the other school districts of comparable size in arkansas especially in the delta region state of our state that's the way those districts have have made it you know work it's the way they've improved their their programs and there is extensive testing of the superintendent as to how this district has taken huge leaps forward but you know still having two campuses to maintain is you know it puts a hole in the budget which pulls resources away from being able to you know improve the educations of the children and make their you know make the education well the school choice allows students from another district to attend say in this case the palestinian whately district but those those parents don't have to move so that the actual it's not there's not going to be if i understand that your honour's question correctly there wouldn't be an impact on the actual population within the various towns in which the palestinian wheatley district is is made up of you know the school  well the school population yes there was evidence in the record i thought lead there were like eighty seven eighty seven school choice students during this the i guess the eleven twelve school year which was the those school choice students into schools toward statute at the time were white or black but we did have an at total number and they were all white stews and there was no evidence in the record offered by the plaintiffs below mr walker's appliances to mean it was just an argument he made that that the palestinian weekly district is a white flight district that was his argument though there was no evidence presented showing that the palestinian will a school district did things to cause some kind of white flight into the district and it's really in the description mind not a not a material not an important argument it teacher from the weekly school that i believe we had one testified extensively about you know all the different changes in the district and you know how the modification or terminations of the decree would help the district you know kind of fix the hole in its budget you know stay fiscal distress because there are there are a few i believe that the record was that the district had eighty seven school choice students which are students that reside outside the boundaries of the palestinian w district but you know the term is choice in under that school choice and the school choice statute that he that existed at the time and as we said many of those were white students from his mr walker said mariana for city and  other neighboring communities but they weren't all white students i mean there were some black students that choice stand of the palestinian wheatley school district but there was just no evidence that the district was doing things to attract to them it's it's equally as likely  s you know those students simply thought that you know the educational program in palestine wally was superior to what those parents felt their children could get in for city or frankly or clarendon or some other some other neighboring community do you feel that the consent decree has been terminated yes i do because you know the district there were a number of things in the year that was easy yes or no yesterday i do believe i do believe what and do you think that the freeman against it standard must be met to terminate the degree  i would say yes do you think the judge applied to frame it against that standard i believe it's clear that she did by looking at the last the last  well how does i mean i think ruth excuse me or how does ruffalo play into it i think rufo plays into it because a lot of times in the in the desegregation cases the court is looking at a at a at a desegregation settlement agreement ok and in this case we're really looking it was styled the agreement in this case was styled as a consent decree to may and and to me rufo as the supreme court's latest edification on what the standard is for a court when determining whether a consent decree should be modified or terminated so to may i think in a school desegregation case i think i think judge wright got it correct i think you look at freeman and i think you also i think rufo has a has a has a place at the table you know because ruth specifically talks about the flexible standard and the notion that determining whether a consent decree has been met is it's a flexible standard that requires you know that has to be decided or principles of equity which are all in a nutshell what was your case that the vestiges of past a scrimmage nation have been eliminated to the extent practical our case was that you know that there's the absence of any evidence whatsoever that this disparate continues to operate any kind of a separate school district and the fact that we've complied fully with every bit of the consent decree that was that was entered into in one thousand nine i mean that's the district comply the district you know change the way it's board i mean the what was the was the presence of a school in wheatley necessary to eliminate the vestiges of discrimination apparently in one nine hundred ninety it was thought that that was that was that that was the good why is that not necessary anymore because the population is almost i mean the circumstances were totally different back in one nine hundred ninety there was a significant after american population in whately you know in this you know i ask anything it comes down to the demographic changes i believe it does in fact if you look at the board vote authorizing the superintendent to request for relief for modification of the consent decree there you know they african american board member that represents the wheatley district supported voted in favor of that motion in support of that because you know minor standing is you know that board member understood that you know what needed to happen here was the best case situation for all the different children in the district not just those in palestrina not just those in the wally area but the district as a whole and it allowed the district to you know to patch the hole in its budget that you know sad but true the smaller districts in this part of arkansas they've all had to close and consolidate their campuses into one campus you know her own cross county league cannie helena all those different just bricks in the air in the area in the delta that are the same size they've all had to do that it's just you know we're just to remain viable in a lot of white view fiscal distress statutes academic distress states use and a return to an earlier interview before you're out of town he said absolutely absolutely yes the decrees been terminated and the last sentence of the district court's order is the motion to modify or terminate is grand now my reading of what the district court did would be that if there were meaningful paragraphs of the decree you hope what you want us to what you hope are affirming order will will permit you to say is why the case i would say that that everything else in the consent decree has been complied with and put in place and there are no plans to go back on such things as it would give me the give me this is a case where the supreme court has said long time compliance is this you know you earn your way out from under the crease provision for example that says all materials have to be designated as palestine wheatley do you think that's still in a fact or not oh it is and in the superintendent sitting over there he testified and you know i don't mean whether they continue to do it i it's not clear from the judge's order i'll concede that point well you know is that i mean if you want to get out of that obligation didn't you have to get an order that says the decree is terminated entirely you know i agree with you yes but you know i think the issue you want to appeal is whether or not the judge was correct in modifying her term managed to curry with respect to that with respect to the relief requested by the district and that was being able to move the middle school five six and eight to the palace main campus and as you well know if we simply i would guess judge wright knew this full well if we simply affirm yes the way she worded yes and the plaintiffs come in x months or years from now and say ok the elimination of the physical school wheatly has happened but there are other aspects of that to create and they're violating and we want you to enforce and she said i think you're right and forces this whatever whatever is she's convinced is lingered well i think you have seen in the cards right i think you're right but i think if that and we should preserve that or there should be some argument from you telling us why that that would be it would be unfair and prejudicial to to preserve what the district court has preserved in the way of future uncertain well i would answer that question in that in the context this decree is is a little bit too maybe unusual because except for moving the school you have a whole whole number of other items that can be handled with like a stroke of the pen or do the right thing exactly yeah so it's not a a decree words talks about i'm standing i'm worried about the do the right thing you know why would that work well because the fact that you've done the right thing as i'm assuming i guess players would given on august fifteenth so in terms of preparation time we don't have any i mean this is this is a motion pleading at the time up to then and then the court just has a hearing on october ninth and that's not a lot of ten and he did not set out  discover schedule this was the motion and she in effect took this as a motion and converted into an evidentiary hearing and evidently hearings have to follow certain standards i don't want to i don't think we should step as president that you can have an evidence you can on a phone when you considering a motion and where you sometimes take evidence you can then convert that into a full trial full fledged trial and then make a ruling and we we preserve the objection to that now in terms of convincing or demonstrating to the minority community the good faith of the community of the school district that has to it has to show us something you close the schools that's not evidence of good faith and then you become in effect a haven for some un disc no no amber of students and you say to the students around the white students from the other districts who don't want to be in school the black kids are more important than the skin than the well the cost or weight to begin with we always we also know that cost is not considered a constitutional consideration we know that you you going to have some transportation when you have two schools that was always no so when you start looking at the situation we have to really be in a position to defend what but the proof is that they put on rather than the arguments that mr bufford  point up to you that you if you review his brief you see no page references to any evidence that they presented there and i mean this is just one of those cases where it's argument on behalf  of the of the school district and the new superintendent has been the principal for years comes up with a person that he says as a demographer who the record shows was not a demographer he's somebody the checks have numbers now under the and then to present to present the case and require the burden of proof to be properly placed and after the burden of proof is properly placed in a proper assessment can be made and in this case we would not be here but for the fact that this was not done in this case and and we wouldn't be here if it weren't for the fact that we believe that the district cannot meet burden that to prove so we ask you to remand it to the district court in order to determine that the because the