                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1919
                        ___________________________

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
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Arkansas - Hot Springs
                                  ____________

                              Submitted: April 14, 2016
                               Filed: August 18, 2016
                                   ____________

Before GRUENDER, BRIGHT, and KELLY, Circuit Judges.
                          ____________

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.

                                           -2-
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

                                         -3-
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


                                         -4-
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 Palestine-
Wheatley 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



                                          -5-
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.

                                          -6-
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.

                                          -7-
       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

                                           -8-
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.
                      ______________________________




      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 . . . .”).

                                          -9-
