United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-2915

___________________________

Jasper Mays, Reverend, on behalf of minors Rodney O'Neill Mays and Timothy

Arnell Mays, By next friend Rodney O'Neill Mays, By next friend Timothy Arnell

Mays; Pamela Taylor, on behalf of infants Yolanda Taylor, Paul Taylor and April

Taylor, By next friend Yolanda Taylor, By next friend Paul Taylor, By next friend

April Taylor; Charlie Fay Moore, on behalf of Keno Moore and Lavyonne Moore,

By next friend Keno Moore, By next friend Lavyonne Moore; Rosie Dunn, on

behalf of Keshia Dunn and Alice Dunn, By next friend Keshia Dunn, By next

friend Alice Dunn; Marzell Morrison, on behalf of minors Tequila Orange and

Corey Orange, By next friend Tequila Orange, By next friend Corey Orange;

Shanda Conley; Makeda Dunn; Tina Dunn; Debbie Mooney; April Moore;

Kastrina Robinson; Mary Butler; Sammie Butler; Ella Mae Collins; Rita Moore;

Kim Penn; Carl Robinson; Larry Waters

lllllllllllllllllllll Plaintiffs - Appellants

v.

The Board of Education of the Hamburg School District, a public body corporate;

Charles F. Allen, Superintendent of Schools of the Hamburg School District

lllllllllllllllllllll Defendants - Appellees

____________

Appeal from United States District Court 

for the Western District of Arkansas - El Dorado

____________

 Submitted: June 16, 2016

 Filed: August 24, 2016

____________

Before SMITH, GRUENDER, and BENTON, Circuit Judges.
____________

SMITH, Circuit Judge.

A group of parents, patrons, and students ("plaintiffs") of the Hamburg School

District ("District") appeal the district court's1

 order granting the District's motion to

approve the closure of the Wilmot Elementary School ("Wilmot") and to modify the

gifted and talented (GT) requirements for the District. We affirm.

I. Background

In 1988, the plaintiffs sued the Arkansas Department of Education (ADE), the

Director of the ADE, the District's Board of Education ("Board"), and the District's

superintendent under 42 U.S.C. § 1983, alleging race discrimination in violation of

the Equal Protection Clause of the Fourteenth Amendment and violations of § 2 of the

Voting Rights Act of 1965. As the district court accurately summarized, the plaintiffs

challenged the following policies and practices within the District:

(1) the low number of African-American administrators, teachers, and

coaches in the district resulting from discriminatory recruitment and

hiring practices (¶ 6, 15); (2) the election of school board members on an

at-large basis (¶ 7); (3) the segregation of African-American and

Caucasian students resulting from standardized testing for class

placement (¶ 8); (4) a racial imbalance at Wilmot Elementary resulting

from the district's decision to allow students from the Wilmot attendance

zone to attend Hamburg schools (¶ 9); (5) the disproportionate

assignment of African-American students to special education classes,

and the disproportionate assignment of Caucasian students to Gifted and

Talented classes (¶ 10); (6) student discipline imposed on a racially

discriminatory basis (¶ 11–12); and (7) the disproportionate number of

African-American children held back in the first grade (¶ 13–14).

1

The Honorable Susan O. Hickey, United States District Judge for the Western

District of Arkansas. 

-2-
Plaintiffs requested both injunctive relief and damages based on the

above allegations.

Mays v. Ark. Dep't of Educ., No. 1:88-CV-1076, 2015 WL 4528935, at *1 (W.D. Ark.

July 27, 2015).

The parties negotiated a settlement. On March 6, 1991, the plaintiffs dismissed

their claims against the ADE and its director. On August 1, 1991, by agreement of the

parties, the district court entered an order dividing the District into seven singlemember zones for the purpose of electing school board members. Thereafter, the

plaintiffs settled their claims against the District's Board and its superintendent, and

on September 23, 1991, the district court entered a "Consent Order" disposing of the

remaining issues raised in the complaint. In relevant part, the Consent Order addressed

the functioning of the District's GT program; it provides, in relevant part, as follows:

Beginning with the 1991–92 school year and continuing thereafter,

all Gifted and Talented Programs for elementary students, run by the

district, will be held exclusively at the Wilmot School. A number of

educational and desegregative benefits will flow from this arrangement.

By locating this program in the Wilmot [S]chool, many black elementary

students will be relieved of some of the disparate burden of busing/travel

which could attend their education in the higher grades since Wilmot

does not have an educational presence beyond the 6th grade.

Additionally, because of the special opportunities offered through

G & T, white and black students from throughout the district will be

encouraged to attend the Wilmot facility. The resulting influx of white

and black students from throughout the district for gifted and talented

programs will tend to desegregate the educational experience at Wilmot.

The Consent Order does not set forth a blueprint for the District's

implementation of the GT program at Wilmot. The District chose to implement a GT

"pull-out" program in which GT students would be pulled out of their regular

classrooms for 150 minutes of GT instruction per week. Students attending other

-3-
elementary schools within the District—Noble/Allbritton Elementary

("Noble/Allbritton") and Portland Elementary ("Portland")—are bused to Wilmot one

day per week for GT instruction. Sandra Oliver, the GT Coordinator for the District,

testified that a bus first picks up the Noble/Allbritton GT students at 9:15 a.m., then

picks up the Portland GT students, and arrives at Wilmot at approximately 10:15 a.m.

The Noble/Allbritton and Portland GT students later depart Wilmot at 1:30 p.m. As

the district court noted, "The GT program appears to have operated in this way—as

a pull-out program—from the 1991–1992 school year to the present." Mays, 2015 WL

4528935, at *2. 

The district court retained jurisdiction over the instant case to ensure

compliance with the Consent Order. In 1994, the District moved for approval of a

zone plan to voluntarily annex the Parkdale School District ("Parkdale") into the

District. The City of Parkdale is located eight miles from the City of Portland and four

miles from the City of Wilmot; at the time of the annexation, it was a nearly-all-black

school. The plaintiffs did not oppose this motion, and the district court approved the

rezoning on August 26, 1994. The rezoning added Parkdale to the Wilmot attendance

zone, roughly doubling its size. 

Ten years later, in 2004, the District moved to dismiss this case citing its

compliance with the court's prior orders or, in the alternative, to approve annexation

of the Fountain Hill School District ("Fountain Hill") into the District. By agreement

of the parties, the district court entered an order approving the District's alternative

motion to annex Fountain Hill but denied the District's motion to dismiss the case. 

On March 9, 2005, the District moved for the district court's approval to rezone

the District into nine zones, modify the GT requirements, and permit intradistrict zone

transfers. The motion provided that the rural portions of the District, which included

Wilmot, had suffered tremendous population loss. According to the District, this

population decline had "resulted in an inequitable, inefficient allocation of students

-4-
and resources throughout the district." The District asked the district court to modify

the Consent Order to relieve the District from its obligation to strictly adhere to

attendance zones and operate the GT program exclusively at Wilmot. The plaintiffs

opposed the motion. Following a hearing on the motion, the parties reached an

agreement and submitted stipulations for the court's approval. The district court

entered an amended order approving the stipulations on June 24, 2005. Relevant to the

present case, the amended order provides as follows concerning the GT program:

[T]he parties have agreed to defer any decision on this matter until after

the school board election in September 2005. In the event that the Board

determines that its elementary level gifted and talented program should

be modified, the Plaintiffs have agreed that they will support the Board's

decision, provided that it is justified by legitimate reasons of educational

benefits and financial feasibility. Any such changes shall be adopted

only after a public hearing is held upon at least 20 days notice which sets

out the proposed changes in detail. 

Therefore, the Court finds that this matter is moot at this time and

hereby denies Defendant's motion as it relates to the modification of the

district’s elementary level gifted and talented program.

The case remained dormant until January 10, 2014. On that date, the District

moved to reopen the case and requested approval of the closure of Wilmot and to

modify the GT requirements. In its motion,2

 the District argued that "substantial

2

The district court held a hearing on the motion on June 10 and June 18, 2014.

On the second day of the hearing, the parties indicated that they wanted to hold a

settlement conference with a magistrate judge. The district court adjourned the

hearing, and the parties participated in a settlement conference on August 18, 2014.

The parties failed to reach an agreement. As a result, Wilmot remained open for the

2014–2015 school year. The District filed an updated motion regarding the

modification of the GT requirements and the closure of Wilmot for the 2015–2016

school year. This updated motion was the subject of the district court's order

approving Wilmot's closure. 

-5-
changes in composition of the [District]" have occurred since entry of the Consent

Order in 1991. The District noted such changes as the consolidation of the former

Fountain Hill and Parkdale School Districts into the District. The District asserted that

Wilmot had experienced "declining enrollment and increases in expenses."

According to the District's motion, it began discussions of closing Wilmot due

to declining enrollment at a Board meeting on November 12, 2012. Thereafter, it held

a public forum on December 4, 2012, concerning the closure of Wilmot. At this public

forum, which was publicized in a local paper, the public was permitted to comment

on the potential closure of Wilmot. At a February 11, 2013 Board meeting, the Board

voted to leave Wilmot open and combine grades K–1, 2–3, and 4–5 into three

classrooms. One teacher and one paraprofessional was assigned to each combined

class. A second public forum concerning Wilmot's closure was held on November 18,

2013. At the scheduled Board meeting held that same day, the Board unanimously

voted to close Wilmot at the end of the 2013–2014 school year.3

 The Board decided

to give Wilmot students the option to attend either Noble/Allbritton or Portland.

According to the District, "[t]he Board's decision to close the Wilmot Elementary

campus is justified by legitimate reasons of educational benefits and financial

feasibility." (All caps omitted.)

The plaintiffs opposed the closure of Wilmot, arguing that no changed

circumstances justify closing Wilmot or moving the GT program from that campus.

The plaintiffs additionally argued that the manner in which the District conducted the

GT program at Wilmot was not in compliance with the Consent Order. According to

the plaintiffs, this noncompliance caused Wilmot's declining numbers. 

3

As explained supra, the District ultimately did not close Wilmot after the

2013–2014 school year due to the present litigation over the closure. 

-6-
Following a two-day hearing on the District's motion to approve the closure of

Wilmot and to modify the GT requirements, the district court granted the motion. The

court concluded that the District established that "a significant change in

circumstances" had occurred since the entry of the Consent Order in 1991. Mays, 2015

WL 4528935, at *5. First, the court discussed the "changing demographics in the area"

that have "hindered" "[t]he goals of the 1991 Consent Order." Id. The court focused

on the population downturn in the City of Wilmot, citing United States Census Bureau

statistics. Id. In 2000, the City of Wilmot's total population was 786, and "[t]he

population of 5–14-year-olds was 118." Id. In 2010, the total population declined to

550, and "the population of 5–14-year-olds dropped to 83." Id. The district court

assumed, based on Wilmot's current enrollment, that the City of Wilmot's "population

has continued to decrease since 2010." Id. The court found that the data indicated "a

consistent downturn in population since the Consent Order was entered in 1991." Id.

According to the court, the plaintiffs failed to offer evidence that the trend in declining

population would not continue. Id. The court observed that the City of Wilmot's

population loss "appear[ed] to have prevented Wilmot Elementary from sustaining its

enrollment and/or attracting new families with children to the area." Id. 

Second, the court found that "Wilmot's enrollment numbers have dropped

drastically since the Consent Order was entered, and its financial status has been

heavily impacted as a result." Id. at *6. As a result, the court found that the District

satisfied its burden of "showing that the continued operation of Wilmot is a significant

financial hardship on the district." Id. The court explained that

[e]nrollment at Wilmot dropped from 81 students for the 2011–2012

school year to 59 students for 2012–2013. Enrollment further decreased

to 42 students for the 2013–2014 school year and increased to 49

students in 2014–2015. For the 2012–2013 school year, Wilmot operated

at a deficit of $206,063.98 with a per student expenditure of $10,303.19.

([District] Exh. 15). The per student expenditure in 2012–2013 exceeded

Wilmot's per student funding by $3,492.61. ([District] Exh. 21). For the

-7-
2014–2015 school year, with three combined classes of grades K–1, 2–3,

and 4–5, Wilmot operated at a deficit of $126,588.23. ([District] Exh.

16). Superintendent Max Dyson testified at the hearing that Wilmot's

yearly deficits are not sustainable. He identified the operation of Wilmot

Elementary as the primary source of the Hamburg School District's

financial deficits.

Id. at *5 (footnote omitted). The court compared Wilmot's enrollment and

expenditures with that of Portland and Noble/Allbritton. Id. at *5 n.6. In 2012–2013,

Portland had an enrollment of 131 students and operated with a $132,499.96 surplus.

In 2014–2015, Portland operated with a $224,518.48 surplus. Id. In 2015,

"Noble/Allbritton operated with a $6,405.37 cost per student; Portland operated with

a $7,295.99 cost per student; and Wilmot operated with a $13,254.05 cost per student.

Id. Based on the comparison of the various schools' financial data, the court concluded

that "[t]he goals of the Consent Order—that the educational experience in the

[District] occur on a desegregated basis—are not being served by Wilmot's continued

operation in the face of major financial strain to the [D]istrict." Id. at *6. 

After considering the declining enrollment and financial considerations, the

court addressed "educational considerations." Id. at *5. The court acknowledged that

"the Wilmot students are currently testing at or near the same levels" as the

Noble/Allbritton and Portland students. Id. The student-to-teacher ratio is 8:1 at

Wilmot, while the student-to-teacher ratio is 19:1 at Noble/Allbritton and 18:1 at

Portland. Id. Despite the smaller class sizes at Wilmot, the court found "some

indications that the combined classroom setting at Wilmot has presented challenges

for the teachers." Id. The court cited Board minutes showing "that the Wilmot teachers

feel that 'there is not enough time in the day to teach both grades.'" Id. (quoting

District Exhibit 14). From this evidence the court concluded that "the combined

grades classroom configuration has put a strain on the teachers who are faced with

teaching a full curriculum to two different grades every day." Id. at *6. The court

-8-
concluded that "combined grades are not an ideal situation where there are viable

alternatives." Id. 

Additionally, the court cited the District's "concern[s] that the Wilmot students

in these extremely small classroom environments are not being sufficiently challenged

in terms of classroom competition and are not being exposed to other cultural

viewpoints that might exist in a larger classroom setting" and that the isolated nature

of Wilmot's campus deprives the Wilmot students of "the opportunity to participate

in after-school tutoring, remediation, and other programs that are available at other

campuses." Id. at *5. The court concluded that Wilmot students would "benefit from

the more desegregated, diverse environments that [Noble/Allbritton and Portland]

offer" and that such campuses would provide the Wilmot students with "[a] racially

balanced and culturally diverse educational environment [that] was the goal of the

1991 Consent Order." Id. at *6. 

The court then focused on Wilmot's GT program, citing the District's evidence

that "a handful of students have declined to participate in the program despite having

been accepted." Id. (citing District Exhibit 65A). Specifically, 

[f]or 2010–2011, it was noted that twelve students did not turn in forms

that would have given the school district permission to test them for

entry into the GT program. The transportation challenges for GT

students have likely contributed to a lack of participation. GT students

travel by bus to Wilmot, departing Noble/Allbritton at 9:15 a.m., picking

up GT students at Portland Elementary, and arriving at Wilmot

Elementary at approximately 10:15 a.m. The GT students from

Noble/Allbritton and Portland then depart Wilmot Elementary at 1:30

p.m[.] and return to their regular classes between 2:00–2:30 p.m. Due to

their participation in the GT program and the bus ride, Noble/Allbritton

and Portland GT students are absent for 1–2 hours of regular classroom

instruction per week.

-9-
Id. 

Based on the aforementioned evidence, the district court found "that a

modification of the Consent Order is justified due to the substantial changes that have

come to the Wilmot campus in the 24 years since the Consent Order was entered." Id.

The court concluded that the Board's "unanimous vote to close the Wilmot campus

was based upon legitimate financial and educational concerns" and therefore found

"that the proposed modification to the GT program is suitably tailored to the changed

circumstances at Wilmot Elementary and will comply with the goals of the Consent

Order." Id. As a result, the court granted the District's motion for approval to close

Wilmot and amended the Consent Order "to relieve the Hamburg School District from

its obligation to hold its Gifted and Talented elementary program exclusively at the

Wilmot Elementary campus." Id. at *7. 

II. Discussion

On appeal, the plaintiffs contend that the District failed to prove that "the facts

and circumstances as they existed in 1991 or 2005 had changed in a significant

enough way that Wilmot should be closed." The plaintiffs also assert that the District

acted in bad faith and "willfully ignored most of the provisions of the 1991 [C]onsent

[D]ecree and made material changes to the programs at Wilmot without seeking the

approval of the district court."

We review "the district court's modification of the decree for abuse of

discretion." Smith v. Bd. of Educ. of Palestine-Wheatley Sch. Dist., 769 F.3d 566, 568

(8th Cir. 2014) (citation omitted). 

"Rule 60(b) of the Federal Rules of Civil Procedure authorizes modification of

consent decrees." Id. at 570 (citing Rufo v. Inmates of the Suffolk Cty. Jail, 502 U.S.

367 (1992)). This rule "provides that a party may obtain relief from a court order when

'it is no longer equitable that the judgment should have prospective application,' not

-10-
when it is no longer convenient to live with the terms of a consent decree." Id.

(quoting Rufo, 502 U.S. at 383 (quoting Fed. R. Civ. P. 60(b)(5))). As a result, the

Supreme Court has explained that "a party seeking modification [must establish] that

a significant change in circumstances warrants revision of the decree. If the moving

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

modification is suitably tailored to the changed circumstances." Id. at 570–71

(alteration in original) (quoting Rufo, 502 U.S. at 383); see also id. at 573 ("The Rufo

standard has two essential elements, whether 'a significant change in circumstances

warrants revision of the decree,' and if so, 'whether the proposed modification is

suitably tailored to the changed circumstances.'" (quoting Rufo, 502 U.S. at 383).4

A. Significant Change in Circumstances

To satisfy the first Rufo element, the District had to "establish 'a significant

change in circumstances,' not merely that 'it is no longer convenient to live with the

terms of [the] consent decree.'" Smith, 769 F.3d at 573. We have previously held that

dramatic demographic changes, significant cost savings, a projected

decrease in enrollment, a risk of fiscal distress noted by the Arkansas

Department of Education's Fiscal Distress Accountability and Reporting

Unit, "academic shortcomings" cited by the Department, and evidence

that placing all grade levels on the same campus would likely improve

4

The plaintiffs argue that "the more rigorous test for termination of a

desegregation decree set forth in Freeman v. Pitts, 503 U.S. 467, 490–91, 112 S. Ct.

1430, 118 L. Ed. 2d 108 (1992)," applies. See id. at 568. "[T]he primary difference

between [the Rufo and Freeman] standards is that the Rufo test lacks Freeman's

explicit focus on the moving party's good faith as to both past and future compliance

with the consent decree." Id. at 571. The plaintiffs acknowledge that, in Smith, we

rejected the argument that Freeman applies to the modification of a consent decree.

See id. at 571–73. Because "one panel of this Court is not at liberty to overrule an

opinion filed by another panel," Brown v. First Nat'l Bank in Lenox, 844 F.2d 580,

582 (8th Cir. 1988), the Rufo standard applies to the present appeal.

-11-
the academic performance of middle school students—together with the

court's finding "that defendants have complied in good faith with the

remainder of the requirements set forth in the consent decree," were a

sufficient basis for [a] [district] court to conclude that [a] [school]

[d]istrict had demonstrated the requisite "significant change of

circumstances." 

Id. (emphases added). 

Here, the district court cited factors similar to those considered in Smith,

including (1) demographic changes, (2) fiscal considerations, (3) decrease in

enrollment, and (4) educational considerations as a basis for concluding that the

District had demonstrated a "significant change in circumstances." The question is

whether the record supports the district court's finding that these factors contributed

to the significant changed circumstances. We will consider each factor in turn. 

1. Demographic Changes

As explained supra, the district court concluded that "[t]he goals of the 1991

Consent Order have . . . been hindered by the changing demographics." Mays, 2015

WL 4528935, at *5. Specifically, the district court found that the data reflected "a

consistent downturn in population [in the City of Wilmot] since the Consent Order

was entered in 1991." Id. The court found no "evidence to indicate that this trend will

not continue." Id. 

On appeal, the plaintiffs admit that "[the City of] Wilmot has been losing

population over the decades." But they assert that the population decline is not

significant because the District "knew in 1991 that [the City of] Wilmot . . . was losing

residents." The plaintiffs argue that because the parties could anticipate further

population decline at the time that the district court entered the Consent Order, the

present population decline does not constitute a changed circumstance. 

-12-
"Ordinarily, . . . modification should not be granted where a party relies upon

events that actually were anticipated at the time it entered into a decree." Rufo, 502

U.S. at 385 (citations omitted). A party who "anticipated changing conditions that

would make performance of the decree more onerous but nevertheless agreed to the

decree" must "satisfy a heavy burden to convince a court that it agreed to the decree

in good faith, made a reasonable effort to comply with the decree, and should be

relieved of the undertaking under Rule 60(b)." Id. (holding that remand to district

court was required to consider whether upsurge in inmate population at county jail

was foreseen by county officials, so as to preclude modification of consent decree

requiring single celling of pretrial detainees). 

In support of their argument that the District anticipated the population decline

in the City of Wilmot, the plaintiffs cite the testimony of Carlton Lawrence, the

District's financial officer. Lawrence previously served as Wilmot's superintendent

during the 1984–1985 school year. After the District annexed Wilmot during the

1985–1986 school year, he served as the principal of the junior high school in

Hamburg. From 2002 to 2006, he served as the superintendent of the District.

Lawrence testified that "[t]he population decline has been a plague . . . on the Delta

[,of which Wilmot is a part,] . . . [for] the last 40 years, from the change in the

agriculture." Lawrence explained that this change and population decline "has affected

school districts and schools up and down the Delta area" and described it as "an

ongoing situation." 

Lawrence's testimony shows that the District knew that a population decline

was generally occurring in the Delta at the time of the 1991 Consent Order.

Additionally, census data that the District admitted into evidence shows a 14.7-percent

decline in the City of Wilmot's population from 1980 to 1990—the year before entry

of the Consent Order. Consequently, the District could have anticipated further

population decline in the City of Wilmot at the time that the Consent Order was

entered. On the other hand, the rate of decline was not readily predictable from the

-13-
census data. The rate of decline is reflected in the District's Exhibit 26,5

 which reveals

the following:

City of Wilmot's Population

Year Total Population Rate of Decline

1980 1,227

1990 1,047 14.7% decline from 1980

2000 786 24.9% decline from 1990

2010 550 30% decline from 2000

2013 (estimated total

population for 7/1/2013)

531 32.4% decline from 2000

As the chart demonstrates, the 14.7-percent decline that occurred between 1980

and 1990 increased to a 24.9-percent decline between 1990 and 2000. The rate of

decline jumped to 30 percent between 2000 and 2010. As a result, we conclude that

the doubling of the rate of population decline in the City of Wilmot could constitute

a significant change in circumstances that the District could not have anticipated at the

time that the Consent Order was entered.

2. Decrease in Enrollment

The district court found that "Wilmot's enrollment numbers have dropped

drastically since the Consent Order was entered." Mays, 2015 WL 4528935, at *6. 

5

Exhibit 26 consists of three charts from the U.S. Bureau of the Census: (1)

"Total Population for Arkansas Places by County: Vintage 2013"; (2) "Population By

Race and Hispanic or Latino (of any race); Arkansas By Place: 2010"; and (3)

"Population by City 1980–2000." (All caps omitted.) We have condensed this

information into one chart to show the population decline in the City of Wilmot. 

-14-
As with the population decline, the plaintiffs admit "that the student population

at Wilmot Elementary School has declined to the point where it had forty-nine total

students in 2014–2015." But they argue that because the District "knew in 1991 that

Wilmot proper was losing residents, [then] . . . it also knew that the school would lose

students[,] too."

The testimony of Superintendent Max Dyson and supporting exhibits6

 reveal

the following:

Wilmot's Enrollment 

Year Number of Students

2009–2010 102

2010–2011 87

2011–2012 81

2012–2013 59 or 60

2013–2014 42 or 45

2014–2015 49

January 15, 2015 48 (6–K, 12–1st, 7–2nd, 7–3d, 10–4th, 6–5th)

While the record lacks data showing Wilmot's student enrollment at the time

of the Consent Order, the aforementioned data shows an approximately 53 percent

decline in student enrollment from the 2009–2010 school year to the 2014–2015

6

We have combined the data from the following exhibits to show the number

of students attending Wilmot during the designated years: (1) District's Exhibit 15

("Wilmot Elementary"); (2) District's Exhibit 24 ("Headcount Statistics Report"); and

(3) District's Exhibit 48 ("Wilmot Elementary School: Achievement History and

Projected Outcome"). 

-15-
school year. This tracks the acceleration in the population decline for the City of

Wilmot. Like the population decline, we conclude that the District could not have

anticipated the rapid rate of decline in student enrollment at the time that the Consent

Order was entered; therefore, this factor contributes to the significant change in

circumstances. 

3. Fiscal Considerations

The district court also found that "Wilmot's yearly deficits are not sustainable"

based on District's Exhibits 15, 16, and 21, and Superintendent Dyson's testimony.

Mays, 2015 WL 4528935, at *5. The court found that "[f]or the 2014–2015 school

year, with three combined classes of grades K–1, 2–3, and 4–5, Wilmot operated at

a deficit of $126,588.23." Id. (footnote omitted) (citing District's Exhibit 16). 

The plaintiffs admit that "[a]t first blush" the district court's finding that Wilmot

could not sustain running a deficit of $126,588.23 "seem[s] reasonable." Nonetheless,

they argue that the District's annual budget is $16 million, with a routine surplus of

$2 million. From this data, the plaintiffs conclude that the District is a "fiscally sound

school district." They further argue that "[t]he [District] knew in 1991 that it would

cost more to keep Wilmot open than to close it. Yet it agreed to keep Wilmot open

nevertheless." 

Superintendent Dyson testified about Wilmot's fiscal condition. In 2014–2015,

the student funding matrix set forth in the Arkansas Code Annotated was $6,521.00

per student in taxpayer funding. Ark. Code Ann. § 6-20-2305(a)(2)(B) (2013 Repl.).

The District's Exhibit 22 shows that Wilmot operated with a $13,254.05 cost per

student in 2015. Superintendent Dyson testified that, as a result, each student at the

Wilmot Campus cost the District $6,733.05 over the $6,521.00 in funding from the

matrix. Based on these figures, Dyson testified that Wilmot's yearly deficits are not

sustainable:

-16-
It doesn't matter what group you are in, what business, what

organization, you cannot sustain deficit spending. Deficit spending will

get you to the point of where you cannot operate. In school business

deficit spending that will get you to the point to where you cannot

operate within a period of years triggers what is called fiscal distress as

such and you lose your local control.

District Financial Officer Lawrence similarly testified:

Well, the bottom line is that there simply is not enough student funding

at—foundation funding, as the State called it, at Wilmot based on the

number of students to support a full faculty and full services for the, for

the student population there. 

Lawrence also discussed Defendants' Exhibit 22 showing Wilmot's expenditure of

$13,254.05 per student versus the much smaller expenditures per student in other

District schools, stating, "Well, it just further demonstrates that the . . . per-student

cost of operating an extremely small situation is a lot higher than the one that has

higher numbers of students."

This testimony does not establish that Wilmot's expenses have or necessarily

will produce a financial crisis because the District as a whole still operates at a

significant surplus. Instead, it shows that the elimination of Wilmot would result in

a "cost savings." See Smith, 769 F.3d at 573. The District would save almost $7,000

per student by eliminating Wilmot, but this savings alone is not a sufficient

justification for modification of the consent decree. In the absence of population and

enrollment decline, see supra, and educational considerations, see infra, the District's

financial concerns would not establish the required significant change in

circumstances.

-17-
4. Educational Considerations

Lastly, the district court found that educational considerations contributed to

the significant change in circumstances warranting a modification of the Consent

Order. On appeal, the plaintiffs challenge this finding, arguing that "Wilmot is the

highest performing elementary school in the [District], which means that closing the

school is not based on legitimate reasons of educational benefit."

The district court did address the Wilmot students' academic performance. See

Smith, 769 F.3d at 573. It recognized that "the Wilmot students are currently testing

at or near the same levels as students at Noble/Allbritton Elementary and Portland

Elementary." Mays, 2015 WL 4528935, at *5.7

 After recognizing the quality

performance of the Wilmot students, the district court further explained why

additional educational considerations undermined the students educational experience.

First, the court found that "[t]here are indications that the combined grades classroom

configuration has put a strain on the teachers who are faced with teaching a full

curriculum to two different grades every day." Id. at *6. District Exhibit 14 supports

this finding. It reflects Board minutes in which a teacher, on behalf of the Wilmot

teachers, told the Board that "there is not enough time in the day to teach both grades." 

Second, the court credited the District's "concern that the Wilmot students in

these extremely small classroom environments are not being sufficiently challenged

in terms of classroom competition and are not being exposed to other cultural

viewpoints that might exist in a larger classroom setting." Id. at *5. The plaintiffs

assert that because the District produced no evidence that "larger class sizes would

7

The District offered the testimony of Lisa Atkins, the Wilmot Elementary

District School Improvement Specialist, who explained that Wilmot is a "needs

improvement focus school" because it tested fewer than 25 students. Atkins testified

that "last year there were 18 students tested at Wilmot grades three through five. So

there was not a minimum end of 25 students. So the school falls into a focus status."

-18-
benefit Wilmot's students," the district court erroneously accepted the District's

"counterintuitive and evidence-free argument that Wilmot's student teacher ratio was

so small as to be detrimental." But Superintendent Dyson explained that his opinion

about placing the Wilmot students in larger classrooms derived from Ted Sizer's

"Horace's Compromise," which is the theory of the "student as learner, and teacher as

coach where students are put in learning centers and teachers . . . involve[] them in

project based learning." According to Dyson, "that's where [he] made [his] decision

that five students in a classroom, the same five all year, no matter how well they are

performing" are still being held back by the lack of opportunities.8

 Furthermore, the

district court credited the District's concern that "due to the isolated setting of the

campus, Wilmot students do not currently have the opportunity to participate in

after-school tutoring, remediation, and other programs that are available at other

campuses." Mays, 2015 WL 4528935, at *5. The plaintiffs have offered no evidence

or argument to counter proof that the Wilmot students would receive these additional

educational resources if transferred to another campus. 

Third, the court found that "[a]s to the GT program at Wilmot, each year for the

past several years, a handful of students have declined to participate in the program

despite having been accepted." Id. at *6. The plaintiffs have not challenged the court's

factual finding that "twelve students did not turn in forms that would have given the

school district permission to test them for entry into the GT program [for the

2010–2011 school year]." Id. But they do challenge the court's conclusion that

transportation challenges for GT students contributed to the lack of participation in

the GT program. They argue that the District never produced evidence that the

commute dissuaded eligible students from participating in the GT program. The

8

The District's desire for larger class sizes with greater diversity and interaction

is legitimate but it is certainly not the only successful educational model nor

indisputably efficacious for all students. Were the standard of review more rigorous

than abuse of discretion this consideration by the District would not be given much

weight in determining changed circumstances. 

-19-
court's conclusion, however, is based on the testimony of District GT Coordinator

Oliver and GT Specialist Renee Treadwell. When asked to explain "some of the

benefits that would flow from moving the GT program as it now is conducted at the

Wilmot campus to the Portland and the Hamburg campuses," Oliver responded:

The GT program would be housed at the home campus of the students,

therefore that would reduce the time out of their classroom instruction

and allow them to have the two hours to be in the classroom. It would

also permit them not to miss activities that they might miss due to the bus

ride.

(Emphases added.) Additionally, Treadwell testified that, in her expert opinion, the

District's GT pull-out program at Wilmot was not the "best practice[]." She explained

that "the added time that [the students are] out of their regular classrooms for the

travel [to Wilmot] . . . adds a burden to those students." According to Treadwell:

[I]f those students who are [at] Wilmot now were to go to either

Hamburg or to Portland when they're identified as needing the GT

services, they would only be out of their regular classroom for the 150

minutes as a pullout program. And there would not be the additional

missing of that classroom instruction.

In finding that the decline in participation in the GT pull-out program at Wilmot

is a factor indicating a significant change in circumstances warranting modification

of the consent order, the district court expressly rejected the plaintiffs' argument that

the now-existing "pull-out" GT program (instituted in 1991) "has always been in

violation of the [1991] Consent Order." Mays, 2015 WL 4528935, at *4 n.5.

Specifically, the plaintiffs had argued that the Consent Order mandated that "GT

students from all over the district were supposed to attend school full time at Wilmot."

Id. The district court disagreed. First, it pointed out that "the elementary GT program

in the . . . District has historically operated as a pull-out program, even before the GT

program was centralized at Wilmot." Id. Second, the court found that "the Consent

-20-
Order was unequivocal in its requirement that students attend school in the attendance

zone where their parents reside." Id. Finally, the court noted that "the GT program at

Wilmot was operated as a pull-out program from 1991–2014 without any indication

from Plaintiffs that they were dissatisfied with the program or that it was in violation

of the Consent Order." Id. 

The district court's analysis is sound. "After 23 years of silence on the subject,"

see id., the plaintiffs argument now that the low participation in the GT pull-out

program at Wilmot resulted from the District's operation of the program in violation

of the Consent Order lacks support in the record.

In summary, we conclude that educational considerations, while not particularly

strong, do provide additional support for the district court's finding of a significant

change in circumstances. 

B. Modification Suitably Tailored to Changed Circumstances

Having concluded that the district court committed no reversible error in

finding a significant change in circumstances, we now address "[t]he second

Rufo element—whether the modification is suitably tailored to the changed

circumstances." Smith, 769 F.3d at 573. "Under Rufo, a court of equity's flexible

authority to modify a consent decree on account of changed circumstances includes

the authority to relieve the moving party of a consensual commitment that was

essential to the original decree." Id. As a result, the district court may "order a

changed-circumstances modification that effectively terminates the decree." Id.

Here, the district court approved closure of Wilmot and modification of the GT

program as the proper modification of the Consent Order due to the significant

changed circumstances. We conclude that such modification is suitably tailored. The

Consent Order began as an effort to ensure "that the educational experience in the

[District] occur on a desegregated basis." Mays, 2015 WL 4528935, at *6. The

-21-
modifications sought by the school district in light of the (1) demographic changes,

(2) decrease in enrollment, (3) cost savings, and (4) educational considerations are in

line with the initial Consent Order.

Because we conclude that both Rufo factors are satisfied, we hold that the

district court did not abuse its discretion in granting the District's motion to approve

closure of Wilmot and to modify the GT requirements.9

III. Conclusion

Accordingly, we affirm the judgment of the district court. 

______________________________

9

In reaching this holding, we, like the district court, recognize "that Wilmot

Elementary is an important part of the [C]ity of Wilmot, and that the [C]ity will feel

a great loss with its closure." Id. at *6.

-22-