Page:Lake View School District No. 25 v. Huckabee, 351 Ark. 31 (2002).pdf/54

84 governs issues of law and fact concluded in the first appeal. We have further held that the doctrine is "conclusive only where the facts on the second appeal are substantially the same as those involved in the prior appeal." Wilson v. Wilson, 301 Ark. 80, 82, 781 S.W.2d 487, 488 (1989). Thus, it does not apply if there is a material change in the facts. See id.

[30] Lake View appears to be contending that the trial court in 2001 was bound by the 1994 order as law of the case. We disagree. The 1994 order was not appealed, but, even more importantly, there has been a material change in the school-funding landscape between the time of the 1994 order and the trial court's 2001 order. We have already discussed the 1995 and 1997 acts as well as Amendment 74, which was adopted by vote of the people in 1996. The issue at the compliance trial and before this court on appeal is whether the State is now in compliance with the state constitution by virtue of what it has done since 1994. The 1994 order, while instructive on certain points, was simply not binding on the trial court in 2001. We affirm the trial court on this point.

b. Desegregation Funds
Lake View next contests the failure of the trial court to include the desegregation money provided to the Pulaski County School Districts for purposes of the Federal Range Ratio to decide disparities in funding among the school districts. On this point, Judge Imber in her 1994 order included the desegregation funds under the formula, while Judge Kilgore excluded them in his 2001 order. We agree with Judge Kilgore that the money should not be included.

In making his decision, Judge Kilgore cited ''Magnolia Sch. Dist. No. 14 v. Arkansas State Bd. of Educ.'', 303 Ark. 666, 799 S.W.2d 791 (1990). The State, in addition, cites this court to a later Eighth Circuit Court of Appeals opinion, ''Little Rock Sch. Dist. v. Pulaski County Special School Dist.'', 83 F.3d 1013 (8th Cir. 1996). We believe that the Eighth Circuit case supports the trial court's decision.