Rоn TEAGUE and Kathy Teague, on behalf of minor children T.T. and S.T.; Rhonda Richardson, on behalf of minor child A.R., Plaintiffs-Appellants/Cross-Appellees v. Jim COOPER, in his official capacity, et al., Defendants-Appellees/Cross-Appellants Arkansas Board of Education, et al., Defendants-Appellees Camden Fairview School District No. 16 of Ouachita County; El Dorado School District # 15, Union County, AR, Intervenors below-Appellees/Cross-Appellants.
Nos. 12-2413, 12-2418.
United States Court of Appeals, Eighth Circuit.
July 25, 2013.
720 F.3d 973
Submitted: Jan. 16, 2013.
Scott P. Richardson, Assistant Attornеy General, argued, Little Rock, AR, for Appellees Bray, Gullett, Mays, Cooper, Ledbetter, Newton, AR Board of Education, Mahony, Saviers, the AR Department of Education, Black and Reith.
Allen P. Roberts, argued, Camden, AR, (Bill Brazil of Conway, AR, and David M. Fuqua and Whitney F. Moore of Little
Christopher Heller, argued, Little Rock, AR, (Clay Fendley and John C. Fendley, Jr., of Little Rock, AR, on the brief), for Amicus party Little Rock School District.
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
LOKEN, Circuit Judge.
In the summer of 2010, Ron and Kathy Teague and Rhonda Richardson (“the Parents“) applied to transfer their school-age children, who are white, from the racially heterogenous Malvern Public School District to the neighboring, majority-white Magnet Cove Public School District, pursuant to the Arkansas Public School Choice Act of 1989,
(f) The provisions of this section and all student choice options created in this section are subject to the following limitations:
(1) No student may transfer to a nonresident distriсt where the percentage of enrollment for the student‘s race exceeds that percentage in the student‘s resident district.
(This limitation was subject to exceptions not here at issue.) The Parents commenced this action against Magnet Cove School District, the Arkаnsas Board of Education, the Arkansas Department of Education, and several board members (collectively, “the Educators“), seeking a declaratory judgment that section (f)(1) violates the Equal Protection Clause and an injunction transferring their children to
Applying the Supreme Court‘s fractured decision in Parents Involvеd in Community Schools v. Seattle School District Number 1, 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007), to the “complicated history” of equal-opportunity education in Arkansas, the district court1 concluded that section (f)(1)‘s racial limitation cannot survive the required strict scrutiny because its “blanket rule on inter-district transfers based solely on [racial] percentages” was not narrowly tailored to serve a compelling government interest. However, applying state law, the court further concluded that section (f)(1) is not severable from the remainder of the 1989 Act. Accordingly, the court deсlared
After the appeals were briefed and argued, the Arkansas General Assembly enacted the Public School Choice Act of 2013 (“the 2013 Act“). Act 1227, 2013 Ark. Acts 1227 (Apr. 16, 2013), codified at
that certain provisions of the Arkansas Public School Choice Act of 1989, § 6-18-206, have been found to be unconstitutional by а federal court; that thousands of public school students are currently attending public schools in nonresident school districts under that law; that there is now uncertainty about the viability of those transfers and future transfers; that this act repeals the disputed provisions of that law while preserving the opportunity for public school choice; and that this act is immediately necessary to resolve the uncertainty in the law before the 2013-2014 school year and preserve existing student transfers.
Act 1227, § 7. We asked the parties to address whether the repeal of the challenged law moots the Parents’ lawsuit. After reviewing the parties’ supplemental briefs and responses, we conclude that it does. Therefore, we vacate the decision of the district court and remand with instructions to dismiss the Parents’ complaint as moot.
In this case, the Parents sought a declaratory judgment that section 6-18-206(f)(1) of the Arkansas Code violates the Equal Protection Clause of the Fourteenth Amendment and prospective injunctive relief. That statute, indeed the entire 1989 Act, was unconditionally repealed by the 2013 Act. “When a law has been amended or repealed, actions seeking declaratory or injunctive relief for earlier versions are generally moot.” Phelps-Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en banc); accord Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1329 (11th Cir. 2004), and cases cited. In their supplemental briefs, the Educators argue the case is moot. The Parents concede their claim for injunctive relief is moot but argue the 2013 Act did not entirely moot their claim for declaratory relief for two distinct reasons.
First, the Parents argue that, although the 2013 Act “repeals the overt race provisions of section (f)(1) . . . it carries forward the question of race in school transfers in a subtle and complex way” by providing:
(b)(1) A school district annually may declare an exemption under this section if the school district is subject to the desegregation order or mandate of a fedеral court or agency remedying the effects of past racial segregation.
This feature of the 2013 Act does not make the Parents’ lawsuit any less moot because the Parents no longer have
Second, the Parents invoke the well-established principle “that a defendant‘s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” City of Mesquite v. Aladdin‘s Castle, Inc., 455 U.S. 283, 289 & n. 10, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (citation omitted); see Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 661-62, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). By its terms, the 2013 Act expires in 2015,
As a general matter, we agree with the Fourth Circuit “that statutory changes that discontinue a challenged practice are usually enough to render а case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.” Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000); see McCarthy, 359 F.3d at 1036-37. “The exceptions to this general line of holdings are rare and typically involve situations where it is virtually certain that the repealed law will be reenacted.” Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994), citing City of Mesquite, 455 U.S. at 289.
In this case, we share the Parents’ view that the 2013 Act‘s expiration almost guarantees the General Assembly will revisit the issue of public school choice in 2015. But we see no indication it intends
In enacting the 2013 Act on an emergency basis, “the legislature acted quickly for the benefit of the [Parents] and other citizens of Arkansas to replace the stricken [Public School Choice Act] with a [statute] it believed would pass constitutional muster.” McCarthy, 359 F.3d at 1036. Without question, the General Assembly will need to address these difficult issues again in 2015 if it decides to enact a new statute extending the perceived benefits of broadly available public school transfers. But there is no reason to believe the General Assembly will simply reinstate section (f)(1) of the 1989 Act. Rather, as judges, we must assume the General Assembly will properly perform its legislative duty by taking into account the diverse political views of its interested Arkansas constituents—parents, students, educators, and others—and by weighing relevant constitutional decisions such as Parents Involved, in fashioning a new law that will then be subject to judicial review. “There is no evidence here that the State intends to reenact the repealed statute, nor that any such legislative action could evade review.” Epp v. Kerrey, 964 F.2d 754, 755 (8th Cir. 1992). In these circumstances, the “voluntary cessation” exception to mootness does not apply because “the allegedly wrongful behavior could not reasonably be expected to recur.” City of Mesquite, 455 U.S. at 289.
For these reasons, the Parents’ claims for declaratory and injunctive relief are moot. As is our normal practice when a case has been rendered moot by events outside the parties’ control, we vacate the decision of the district court and remand the case with directions that it be dismissed. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40, 71 S.Ct. 104, 95 L.Ed. 36 (1950). “The point of vacatur is to prevent an unreviewable decision from spawning any legal consequences, so that no party is harmed by what we have called a preliminary adjudication.” Camreta, 131 S.Ct. at 2035 (quotation omitted). The Parents argue that we should instead apply the rule “that mootness by reason of settlement does not justify vacatur.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). This contention is without merit. See Valero, 211 F.3d at 121.