United States Court of Appeals

For the Eighth Circuit

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No. 15-1919

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W.T. Davis, Individually and on behalf of a Class of Taxpayers of Garland County,

Arkansas, Similarly Situated, and; Garland County Chapter of the N.A.A.C.P.

lllllllllllllllllllll Plaintiffs - Appellees

v.

Hot Springs School District; Arkansas, State of; Arkansas State Board of Education

lllllllllllllllllllll Defendants - Appellees

Earle Love, Individually, and as a Member of the Arkansas State Board of

Education; L.D. Harris, Individually, and as a Member of the Arkansas State Board

of Education; Jeff Starling, Individually, and as a Member of the Arkansas State

Board of Education; Robert L. Newton, Individually, and as a Member of the

Arkansas State Board of Education; Dr. Harry P. McDonald, Individually, and as a

Member of the Arkansas State Board of Education; Rae-Perry, Individually, and as

a Member of the Arkansas State Board of Education; Elaine Scott, Individually,

and as a Member of the Arkansas State Board of Education; Walter Turnbow,

Individually, and as a Member of the Arkansas State Board of Education; Nancy

Wood, Individually, and as a Member of the Arkansas State Board of Education;

Garland County Board of Education; Van Smith, Individually, and as a Member of

the Garland County Board of Education; Carl L. Johnson, Individually, and as a

Member of the Garland County Board of Education; Flora Kimball, Individually,

and as a Member of the Garland County Board of Education; Ira Livers,

Individually, and as a Member of the Garland County Board of Education; John

Wainscott, Individually, and as a Member of the Garland County Board of

Education; E.T. Shuffield, Individually, and as a Member of the Garland County

Board of Education

lllllllllllllllllllll Defendants
Cutter Morning Star School District; Fountain Lake School District; Jessieville

School District; Lake Hamilton School District; Lakeside School District;

Mountain Pine School District

lllllllllllllllllllll Defendants - Appellants

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Appeal from United States District Court 

for the Western District of Arkansas - Hot Springs

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 Submitted: April 14, 2016

 Filed: August 18, 2016

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Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Cutter Morning Star School District, Fountain Lake School District, Jessieville

School District, Lake Hamilton School District, and Mountain Pine School District

(the school districts) sought termination of the Garland County School Desegregation

Case Comprehensive Settlement Agreement (the Agreement) and relief from the

district court’s 1992 order enforcing it. The district court1

 denied their Rule 60(b)(5)

motion. The school districts appeal, alleging the district court applied the wrong legal

standard in analyzing their motion, and arguing that it is no longer just or equitable

to give the 1992 order or the Agreement prospective application in light of the repeal

of the Arkansas School Choice Act of 1989 (School Choice Act). See Ark. Code Ann.

§ 6-18-206 (repealed 2013). We have jurisdiction pursuant to 28 U.S.C. § 1291. 

1

The Honorable Robert T. Dawson, United States District Judge for the Western

District of Arkansas. 

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Because the repeal of the School Choice Act does not warrant termination of the

Agreement, we affirm.

I. Background

On August 18, 1989, W.T. Davis filed, individually and on behalf of a class of

taxpayers of Garland County, Arkansas, a class action lawsuit against Garland County

alleging that it maintained a racially-segregated public school system in violation of

the Fourteenth Amendment and 42 U.S.C. § 1983. The parties agreed to settle the

case and entered into the Agreement on November 25, 1991. One provision of the

overall Agreement adopted the School Choice Act, which allowed students to apply

to attend a school outside of their resident school district, but included a race-based

limitation on such transfers. After a fairness hearing, the court entered an order on

April 28, 1992, approving the Agreement and dismissing the case with prejudice on

the merits. 

In 2012, the district court, as a result of independent litigation, held the

provision of the School Choice Act limiting transfers on the basis of race violated the

Equal Protection Clause of the Fourteenth Amendment. Teague ex rel. T.T. v. Ark.

Bd. of Educ., 873 F. Supp. 2d 1055, 1065–68 (W.D. Ark. 2012), vacated as moot sub

nom. Teague v. Cooper, 720 F.3d 973 (8th Cir. 2013). 

The court’s decision was appealed but eventually rendered moot because, in

2013, the Arkansas legislature repealed the 1989 Act and replaced it with the

Arkansas Public School Choice Act of 2013 (2013 School Choice Act). See Ark.

Code Ann. § 6-18-1901 et seq. The 2013 School Choice Act removed the race-based

limitation on public school transfers and included a provision preventing the receiving

school district from discriminating on the basis of race. The Act included, however,

a carve-out restriction: Under the 2013 School Choice Act, nonresident transfers were

only permitted “provided that the transfer by the student does not conflict with an

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enforceable judicial decree or court order remedying the effects of past racial

segregation in the school district.” Ark. Code Ann. § 6-18-1901(b)(3). 

The school districts wanted to know whether the changes to the state law had

any effect on their continuing obligations under the Agreement, and on May 22, 2013,

filed a petition for declaratory relief seeking continued enforcement of the Agreement. 

 The school districts affirmatively argued that the Teague ruling, as well as the 2013

School Choice Act, did not have any impact on the efficacy of the court’s 1992 order

approving the Agreement and its inclusion of the race-based transfer limitation. The

school districts explained that:

The import [of entering the settlement agreement and obtaining Court

approval thereof] was to incorporate by reference the language, terms

and provisions of the 1989 Act as a consent desegregation plan of the

Court applicable to all public school districts within Garland County,

Arkansas, for the purpose of remedy[ing] the vestiges of prior de jure

racial segregation within the public education system of Garland County,

Arkansas. 

The school districts expressed the view that because the Agreement constituted a court

order remedying the effects of past discrimination (in other words, a consent decree),

it fell within the 2013 School Choice Act’s carve-out restriction. The district court

agreed with the school districts’ assessment that none of the changes in the law had

impacted the Settlement, and granted their requested declaratory relief. The district

court stated that “the Settlement Agreement constitutes a court-approved

desegregation plan that should remain in effect despite recent changes to the law on

which the Settlement Agreement was partly based.” Davis v. Hot Springs Sch. Dist.,

et. al., No. 6:89-CV-06088, slip op. at 4 (W.D. Ark. June 10, 2013). 

Now, however, the same school districts have taken a different position,

explaining that they requested declaratory relief in order to clarify the law during an

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emergency, but they had “no time” to seek termination of the Agreement in court. 

While the type of relief requested may have been affected by timing, the districts state

that their position on the issue changed because of subsequent events. According to

the districts, “[t]he episode that awoke the Districts to the inequity of the Settlement

Agreement was the injustice that befell the Walker children, who were denied transfer

solely because they are black.” Therefore, on August 25, 2014, the districts filed the

present motion for relief from judgment under Rule 60(b)(5), seeking termination of

the Agreement and relief from the court’s 1992 order in its entirety, on the grounds

that it is no longer just or equitable to give the 1992 order or the Agreement

prospective application in light of the repeal of the 1989 Act. The district court

concluded that the school districts had failed to meet the standard for termination

under Rule 60(b)(5) and denied their motion. The school districts timely appeal. 

II. Discussion

Federal Rule of Civil Procedure 60(b)(5) allows the court, “[o]n motion and just

terms,” to “relieve a party or its legal representative from a final judgment, order, or

proceeding” because “the judgment has been satisfied, released or discharged; it is

based on an earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). The parties dispute

the correct standard to apply to the Rule 60(b)(5) motion at issue. The district court

held, and the appellees maintain, that in order to terminate the Agreement, the moving

party must demonstrate “full compliance,” because the “‘core of the termination

standard’ is whether ‘the vestiges of past discrimination ha[ve] been eliminated to the

extent practicable.’” Davis v. Hot Springs Sch. Dist., et al., No. 6:89-CV-06088, slip

op. at 5 (W.D. Ark. March 31, 2015) (quoting Smith v. Bd. of Educ. of PalestineWheatley Sch. Dist., 769 F.3d 566, 572 (8th Cir. 2014) (alteration in original)

(explaining the test for termination of a desegregation decree set forth in Freeman v.

Pitts, 503 U.S. 467, 490–91 (1992))). The district court distinguished between

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attempts to modify a settlement agreement and attempts at total termination, regardless

of the basis for the motion. 

By contrast, the school districts argue that their Rule 60(b)(5) motion should

be governed by the standard set forth in Rufo v. Inmates of Suffolk County Jail, which

requires a party seeking modification of a consent decree to establish “that a

significant change in circumstances warrants revision.” 502 U.S. 367, 383 (1992). 

The school districts allege that the relevant distinction is not one between modification

and termination, but rather whether the basis for the request is changed circumstances

or evidence of full compliance. If the modification or termination is based on a

change of circumstances, they argue, the Rufo standard should apply. “If the moving

party meets this standard, the court should consider whether the proposed

modification is suitably tailored to the changed circumstance.” Id.

We review the appropriate legal standard de novo and the district court’s Rule

60(b)(5) ruling for abuse of discretion. Smith, 769 F.3d at 568. We agree with the

district court that the school districts have not shown evidence of full compliance.2

Still, assuming without deciding that Rufo is the correct standard to apply in this

situation, we conclude that the change in the law presented by the school districts,

standing alone, is not enough to require termination of the Agreement in this case. 

The school districts argue that even if they have not demonstrated full

compliance with the Agreement, their termination motion should be granted based on

2

The school districts concede that they are not arguing “the judgment in this

case has been satisfied, released, or discharged.” The district court provided the

school districts with the opportunity to present any evidence they deemed appropriate,

but they did not submit “any evidence to demonstrate full compliance with the

Agreement” or offer “any proof that the vestiges of past discrimination have been

eliminated,” and the Hot Springs School District (defendant-appellee here) provided

evidence that the Garland County school districts remain racially identifiable. 

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a change in circumstances, namely, a change in the law. While a change in the law

may lead to a successful Rule 60(b)(5) motion, see, e.g., Protectoseal Co. v. Barancik,

23 F.3d 1184, 1187 (7th Cir. 1994), and Rufo may apply in certain instances to school

desegregation decrees, see Smith, 769 F.3d at 571–72, the movants still retain the

burden to show that the change in the law has an actual effect on the section of the

consent decree targeted, making future application inequitable, and that any such

effect warrants termination of the entire Agreement. The school districts have done

neither. 

First, the school districts have failed to show that any change in the law affects

their consent decree. The 2013 School Choice Act has a clear carve-out for school

districts subject to an “enforceable judicial decree or court order remedying the effects

of past racial segregation in the school district.” Ark. Code Ann. § 6-18-1901(b)(3). 

The school districts present only a 2012 federal district court decision, subsequently

rendered moot by a change in the law, to show that application of the old School

Choice Act is prospectively inequitable. See Teague, 873 F. Supp. 2d at 1065–66. 

Even if the case had not been rendered moot, however, they have failed to show why

it would matter. While “[a] consent decree must of course be modified if, as it later

turns out, one or more of the obligations placed upon the parties has become

impermissible under federal law,” there has been no ruling that the 1989 Act is

unconstitutional as incorporated into a judicial decree remedying the effects of past

discrimination, and the school districts have not demonstrated why the reasoning that

drove the district court’s decision in Teague would render it impermissible for

individual school districts to implement in the context of a consent decree the

practices outlined by the 1989 Act. Rufo, 502 U.S. at 388. To the contrary, Teague’s

finding that the 1989 Act was unconstitutional rested on the fact that “[t]he limitation

expressed in Ark. Code Ann. § 6-18-206(f) [the race-based transfer limitation]

applie[d] state-wide without regard to whether a resident or non-resident school

district ha[d] a history of de jure or de facto segregation.” Teague, 873 F. Supp. 2d

at 1066. 

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 Second, even assuming a relevant change in the law, the school districts—who

asked for full termination of the Agreement—must show that the purported change

affects the entire Agreement. In Smith, on which the school districts primarily rely,

“the [district] court’s finding ‘that the defendants [had] complied in good faith with

the remainder of the requirements set forth in the consent decree’” was relevant both

to whether there was a “sufficient basis for the court to conclude that the District had

demonstrated the requisite ‘significant change of circumstances,’” and to whether the

modification effectively terminated the entire decree. 769 F.3d at 573–74. Some

provisions of the decree were effectively terminated by the court’s order granting the

school district’s Rule 60(b)(5) motion, yet other provisions remained unaffected.

Since extending the school district’s motion to terminate those other provisions would

be “supported by nothing more than the notion they are ‘no longer convenient to live

with,’” we were confident that “the district court did not intend that its order terminate

the entire consent decree.” Id. at 574 (quoting Rufo, 502 U.S. at 383). 

Here, the school districts’ motion to terminate the entire Agreement is similarly

overbroad, and a change of law that may or may not apply to one section of that

Agreement is not sufficient to carry their burden. The district court noted in its 2013

order granting declaratory relief that the Agreement consists of much more

than the mere implementation of the 1989 Act. It is a contract that also

addresses the districts’ staff development, curricula, testing and

assessments, special education and gifted-and-talented programs,

student-teacher interactions, and other services designed to enhance and

improve public education in Garland County. 

Davis, No. 6:89-CV-06088, slip op. at 4. The school districts have presented no

evidence that they have either fully complied or that there have been changed

circumstances in those other areas of the Agreement. Termination of the entire

Agreement would therefore be “supported by nothing more than the notion [it is] ‘no

longer convenient to live with.’” Smith, 769 F.3d at 574. The “proposed

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modification” of total termination is therefore not “suitably tailored to the changed

circumstances” alleged here, and the school districts’ motion fails under a changed

circumstances standard. Id. (quoting Rufo, 502 U.S. at 383).3

III. Conclusion

We affirm the judgment of the district court. 

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3

The school districts rely entirely on a change in law to support termination of

the Agreement. Thus, while a change in facts may also support a Rule 60(b)(5)

motion, there is nothing in the record to support a conclusion that any change in

factual circumstances would justify termination of the Agreement in this case. See

id. at 572 (“Rufo and its progeny grant federal courts of equity substantial flexibility

to adapt their decrees to changes in the facts or law . . . .”).

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