your question of sorts i'd like to ask in reading the briefing in this case and the lower court's decision it seems that the decision that was made was a decision on  appeal pertains to the granting or the not granting of the pullin their injunction in a glimmer injections seem to be somewhat limited to the upcoming school year which is now almost done district resend its opt out from the two thousand and thirteen act and notify the neighboring districts so that they could decide whether to accept or not the applications of my clients and enroll and permit my clients to enroll having them that relief vests in them the continued ability to stay in that district and that's why it's it if we can get a ruling between now and be me then stay in that district stay in the transferee district are they in the transferee district no so say i don't know what you mean when you say stay in the trailer under the two thousand and thirteen act wants a student transfers into a district a transfer readers to that student may stay there for the rest of his or her gravitational career so that's the relief if we can get the relief this year and affect the transfer this year then we can than my clients will have that right continuously can you do that statutorily though doesn't the decision have to be made by august one the decision has to be made by august one as to this school year i think that this circumstance we would ask for judicial relief to override that statutory deadline because we to allow you to eliminate the opt out but then you want some other relief on top of that that would require the transferee districts to consider an application at this later date is that we're not asking for that relief we would add that that would follow as a matter of course i submit your honor and if if if someone wanted to say that could not be done now on because the august one deadline has passed i would cross that bridge today does it make any difference that the preliminary injunction you requested even with respect to the rescission of the resolution just says for the upcoming two thousand and thirteen two thousand and fourteen pending determination i don't think it does because the time has moved forward and the intent really your honor is to allow the transfer of these children for the remaining educational period that they for the rest of their school years that is certainly what the what the motion for preliminary injunction said we anticipated that we would have an up or down answer and be able to to process the africa so if earnest and you 're saying even though potentially this court may not have an answer to your question before the ending of the current school year you're saying relief would still be meaningful because if granted for the school year that's passed that it has effect on future school years absolutely and i have this is a parent's involved case and  we need to have a recognition and a ruling on that issue we've been frustrated by mootness in the old teague case that was decided in july of last year that was the precursor we now have this case which the district court recognised is part of the history of the once again we have the parents involved issue because the school district says you may not transfer children because we opt out to keep white children from transferring that's what this case is and what we need to have an answer both for the future of this case and for the immediate needs and use of my client so what deeside for authority that there remains a viable remedy beyond this school year what what what would we look to in this record to to be able to make that determination with respect to the  as requested for the thirteen fourteen school year i'm not sure i can provide that for the overall guidance of this litigation absolutely that's what this litigation turns on that's where we are that's what the issue and we need to have an answer that as soon as possible if we don't have an answer to that then my remedy is to go back and have a trial on the merits the statute itself says just as soon since it was a policeman or injunction request this case is still alive below yes and his had been set for trial no we don't have a scheduling order and i have i have have not pressed for one because i wanted to get this appeal decide because it really is  the most important that the legal issues are here the act is still in effect so that a person could apply next year but it expires at the end of june twenty fifteen so i don't think i could have a trial and get in under the bell your honor i see but you're saying if you get in during these two years your children are good for the rest of their time that's why you say it's still alive yes you are and i don't want to work how would that transfer redistrict make a decision after the school years old or how do you well it would have to make a decision in the regular course under the statute do we or do we not have room for these children does this make sense for us do we wish to or some sort of a hypothetical decision if this had been presented to us before twenty thirteen school year we would if you grant it admission or i would submit that they could make that decision now and if laiva wanted to challenge it we could have an appeal to the board of education that decision by the transferee district would give rise to any ministry of appeal to the board of education what blytheville has done has ended the process and has destroyed any ability of my clients to transfer we have a parents involved case because even if blytheville had been able to opt out on april twenty ninth of two thousand and thirteen and even if it had grounds popped out under the statute it still asserted as his reasons race and it defends this case on the basis of resegregation white flight have they ever offered any other reason the franklin lawsuit which was about desegregation you mean the subject to the order yes yes that's all we have and so but in your what's your constitutional claim as an equal protection we have an equal protection claim we have a procedural due process going because my clients have the entitlement under the statute to have a school district participate in school choice unless the school district ops out under the terms of the statute which means before april one and because it is subject a desegregation order we're going back to the equal protection is your theory that you have evidence race discrimination or is this that there's no rational basis wrestle race discrimination and it's we what are you a body what if they claim we thought we were subject to the franklin order that's what they have quite well that would be would that be racist scrim nation oh yes just be wrong as a matter of the history of that frankly it would be race discrimination because the defense of this case the testimony at the hearing was we made this decision  and white flight that has prompted this action by the board has to do with children transferring from bible to other districts which is the milliken versus bradley issue which was never an issue in franklin to begin with but the what prompted them to do this was the belief that they had to stop white flight and there was another comparative your honor judge college in which was the kipp school in bly which is more predominately black than the bible school district and there is it's a open enrollment public charter school and there is a process in a statute in arkansas the requires the bible district to review the open enrollment charter application and speak up if it would impair the desegregation efforts of a school district of it as a school district that kipp school is within the bible school district it has a higher concentration of black students than the bible school district and never said oh by the way this franklin case from thirty five years ago compels us to step forward and say we have desegregation remedies that remain to be completed now is a franklin case judge isley retain jurisdiction for a period of time right five years so during that five years anybody could have reserve my time and if it would help on this issue of mootness which i had not anticipated not apologize i'd be certainly happy to submit briefing i know that the court does not want to drag this out and further the district's position is that the trial court correctly denied the injunction because there was simply a failure of proof offered by the plaintiffs below to the extent as a serious satisfied you know of the well rational basis for the opt out the rational basis simply of that district testified that it believed that it had the right to opt out based on the way the statute was written and the existence of not only the franklin desegregation lawsuit but the department of justice in the house department test education and welfare mandates agency mandates that came down that prohibited the district from going you know from continuing with this freedom of choice plan and the superintendent the board felt like this the way the school choice law was drafted the district had the right to exercise that exemption in opt out because if to not opt out would result in the district going back blocking school choice transfer under that statute didn't implicate equal protection laws and there's just no there's no evidence that there was anything irrational or arbitrary or capricious about what the district basis that the district was subject to the order in the franklin case subject to the order in the franklin case in the statute also covers agency mandates which the district oh i know but i want to take them one of the time yes i understand your argument y the franklin case yes how is it that they're subject to the order in the franklin case when the case was dismissed in one thousand nine hundred seventy eight it was dismissed but there were orders entered by the court that the different believe that still subject to reduced the orders are still in effect although the case has been dismissed yes that's correct what was the purpose of the dismissal because as i understand it judge isley retain jurisdiction for five years under which he couldn't force the order but then five years later dismissed the case he dismissed the case because there was no further action to take but to the to the district that didn't mean that those orders did not remain in effect so much of the district couldn't go back to this freedom of choice student assignment plan that brought about you know the lawsuit in the first place and also brought about you know the department of justice and eighty dubey actions in the district believes that the trial court's ruling on the plenary injunction was correct first off because there was a low low probability or likelihood of success on the merits we've talked about a protection climb for me an i was thinking about your answer you haven't yet that already that would help us on whether a court order lives on in perpetuity once the district court dismisses the action in which the order was entered i think that's your position you're saying saying is that you know the way that school choice act of two thousand and thirteen is written the district is subject to those to the franklin case and the agency mandates and therefore qualifies for the exemption under that statute we don't have to analyze you know things such as how long the jurisdiction of the court if we are some if we are subject to that order or to that case what does that mean to be subject to the order well the district believes it means that it qualifies the district for the exemption under the school choice act or twenty we haven't really explained what kind of a worker is required for it is the subject of the order that's what i'm trying to get right now i understand but you're just saying the district decided that it was subject to the order and it circular it doesn't explain why they're subject to an order in a case that's been dismissed unless it is that the order continues in perpetuity which is what i thought you were saying well said no that's not your position because of those cases an agency mandates it's not it's subject to the desegregation order a mandate and therefore has the right to declare the exemption the district believes it's still subject to those orders and mandates because to go back to a freedom of choice system which of the one nine hundred sixty s era that was you know the subject or the reason why there were eighteen c mandates in a franklin lawsuit filed against the district for the district to go back to that would violate the franklin case in the agency mandates and simply that the mandates would be like this it was an interim district it was it was in this and it's an it's not it's there different but i think the the analysis and the conclusion in the end results same and you know we also believe that the lower court got it right on the due process claims which are the other climbs we start with a promise that you know one thousand nine hundred three actions really aren't meant for this kind of a case where the is not that's that's incorrect and what about this white flight argument that he raised the operative reason was to avoid the district returning to a freedom of choice plan which exposed the district to all of the litigation back in the seventy's in the franklin case and the agency mandates that freedom of choice plan is what got the district in trouble back in those days you know to  opt out based upon the district's involvement in the desegregation the agency mandates back in the late sixty's and early seventy's that's what allowed the district to claim the exemption that's presumably why the exemption was included in the two thousand and thirteen act and that's why the district exercised its right to opt out and declared the exemption into the two thousand and thirteen  doesn't apply here there's nothing about the district's actions that were outrageous or shocks the conscience and suffering to due process typically applies only to marriage procreation bodily integrity with respect to the procedural due process climb again plaintiffs offered no evidence as to what process they were they were do or that plan does offer no evidence evidence that they made some request that the school board rescind its action arkansas law has procedures whereby this rigs that call special meetings like this have to notify the news media there's no specific wire meant that the district notified any others first special board meeting but there is a procedure that plaintiffs could have but did not avail themselves of under arkansas state law for the plaintiffs to call for a special board meeting for the school district board to reconsider and act on plaintiff's request that the district  the bottom line under the due process climes is that the plaintiffs seem to assert the notion that the district court properly rejected that there are some fundamental right to exercise school choice  in arkansas or percent of this statute and that's just simply not correct i mean that's a that's an argument that that creates something new that's not in our constitutional jurisprudence there's nothing conscience shocking  there's no evidence that the this board that intended to treat these plaintiffs differently there's no action or no evidence that the board's action here was on the exemption was irrational  r particularly arbitrary you know the district took this action fairly early on less than two weeks after the statute was signed into law by governor beebe there were just  handful of exemptions or exemption requests or choice request applications that have been filed by parents at that time the district took this action at an early stage very quickly after the law was passed so that everyone in the community would know and in the district would know that there would be you know that no one in the district would have the option to you know to apply for a transfer under the two thousand and thirteen act a nd then lastly the court was correct in dying denying the request plumeri injunction based on the their failure to establish irreparable harm the plaintiffs tended to focus on whether they had an adequate remedy at law but really the first standard and the court correctly noted below that is looked at is that the harm must be certain or great plaintiffs took issue with the fact that the way the  phrased this was that the injuries had to be unique and i think what the court below was simply saying was that the harm had to be certain or great and that every parent or most every parent has concerns about their children i think the court recognize that that's not a particularly unique or incredible or certain or great harm because if the students stayed in the bible this would they would receive a fine education it wasn't like in the other cases the pierce case  totally out the window because of the state statute in an obviously brown v board of education here this this case is different plaintiffs just articulated a generalized concern about their kid's education that in fact might be  present in the district that the parents transferred their children to under the two thousand and thirteen act if they had all been allowed that option at bottom there was simply a lack of evidence presented to the trial court in order for the  as mr ask you said he's correct under that statute once a student choices out or is a loud the choice out there are allowed to finish their education at the transferee school so that would that would be an argument mitigating your way well just a violation of state statute just sue the district but it's not a violation of state statute that's why we have we argued against that the district court having jurisdiction of this case the beginning because essentially this case in about federal rights district did and bring it bring an appeal to the arkansas department of education the state board of education and and then if the state board denied the request for choice at the state more level then the administrative procedures act would apply and there would be a right to appeal the circuit court based on the state boards denial of the parents appeal to choice out of the display so there are two ways to get at innisfail the decision of the of an opt out or they only feel the decision of the transferee gives for well yes it's not totally clear whether or not a decision district decision to declare the exemption could be appealed but it it does seem to be understand it well and apply to a transferee district because of this opt out i think i disagree with that that's what in the four city situation what happened there was those parents applied and the potential  army please the court the avenue and state law a state court is to file this lawsuit in state court i think that's what the school district just told you judge college in this last thing you have stated you could say that the state law doesn't authorize the opt out whereas here you're limited do try to make it into a federal question right and i could also bring the one thousand nine hundred three claim in state court but i would have a state law judge trying to figure out how what do i do with franklin and here we have a federal court who can is on is on the same footing as the franklin case my view of the matter is that the state board denied the at the appeals in the four city case because they didn't want to mess around with a federal desegregation case state authorities in arkansas are scared to death of federal desegregation cases they won't touch  and that's why we chose federal court in this declaration we've asked for a declaration and we brought a claim under the arkansas civil rights act as under supplemental jurisdiction in this case wh subject to franklin here in two thousand and thirteen fourteen in which case the qip situation couldn't exist or it is not in which case this opt out can't exist by the can't have it both ways and it wants to have a both ways there is there is a law on how long desegregation decrees last it's cases like freeman versus pitts it's cases like kansas city like litt this court has as much experience as any court in the country on desegregation cases and those are exactly what they involve judge isley did these things by the bucketful in one nine hundred seventy in seventy one this court had to assign a special judge to come down and help with the rest of the docket so there is no argument that that case is over franklin cannot be a case to which live of his subject that's outrageous abusive use of state power against my plaintiffs my plaintiffs where the people who had sought to transfer and filed their applications before th compelling case for culinary injunctive relief the trial judge just was blind to this question of the parents involved even though the trial judge