ARKANSAS — It’s uncertain where thousands of children will attend school in the next academic year after a federal judge on Friday struck down a state law those students have used to transfer out of their home districts.
U.S. District Judge Robert Dawson said in a 32-page ruling that the state must not allow transfers between districts under the Arkansas Public School Choice Act of 1989 after he determined that a race-based restriction in that law was unconstitutional.
Dawson threw out the entire School Choice Act after he determined that clause could not be separated from the law.
Attorneys discussed Friday how school districts should respond to Dawson’s ruling.
“It creates uncertainty for students and parents who’ve transferred under the act in the past,” said Jess Askew III, an attorney for a group of seven parents who sued over the race clause because it prevented the transfer of their children.
The plaintiffs had argued that the court should toss out the clause but maintain the rest of the law.
Askew said his clients plan to appeal Dawson’s decision to the 8th U.S. Circuit Court of Appeals in St. Louis. The plaintiffs also plan to seek a stay, which would allow transfers under the School Choice Act to continue until the court clarifies how to apply the ruling, he said.
There are 13,666 Arkansasstudents currently attending a school outside of their home district, state Education Department spokesman Seth Blomeley said.
While the exact numbercannot be determined, a majority of those students transferred under the School Choice Act, he said.
Districts are set to decide whether additional families can transfer their children under the law. Those applications are due by July 1.
“I have asked my staff to review all the effects of this ruling on our students, parents and school districts, including on those students who were granted school choice approval under the Arkansas Public Choice Act prior to today’s ruling,” Education Commissioner Tom Kimbrell said in a statement.
“My staff will also be in consultation with the Arkansas Attorney General’s office to determine what future legal steps, if any, the Arkansas Department of Education will take regarding this matter.”
The lawsuit - which attorneys in the case believe to be the first constitutional challenge to the state’s choice law - came after a U.S. Supreme Court rulingthat said school assignments based solely on race were unconstitutional, with few exceptions.
The plaintiffs argued that a clause in the School ChoiceAct, Arkansas Code Annotated 6-18-206 (f), violated the equal-protection clause of the 14th Amendment to the U.S. Constitution because it prohibited their children’stransfers solely because of their race.
That clause said “no student may transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district.”
The plaintiffs wanted to transfer their children, who are white, from the 2,094-student Malvern School District, which is 60 percent white, to the 636-student Magnet Cove School District, which is 95 percent white.
Defendants in the case are the Arkansas Board of Education, its individual members and the Magnet Cove School District.
Arkansas Assistant Attorney General Scott Richardson argued that the race clause was necessary to honor federal court obligations in previous desegregation cases, such as the one in Pulaski County involving three of the state’s largest districts.
In 1982, the Little Rock School District sued the state and the Pulaski County Special and North Little Rockschool districts, claiming that they took actions that resulted in racial segregation of students.
In that case, U.S. District Judge Henry Woods foundthat “the State did not engage in its affirmative obligation to assist the Pulaski County districts in their desegregation efforts,” Richardson wrotein his filings in the schoolchoice case.
Dawson on Friday sided with the plaintiffs, saying the race limitation was not “narrowly tailored” to address the individual circumstances of affected students.
“This fear of ‘white flight’ does not, in and of itself, justify the overbroad restrictions on school transfer,” he wrote, citing a U.S. Supreme Court ruling related to racebased student assignment in Seattle schools.
Dawson ruled the race restriction could not be severed from the School Choice Act because the surrounding language in the law made it clear that Arkansas legislators “seriously considered the prospect that unlimited choice would defeat integration and create liability on the part of the state.”
Allen Roberts, a Camden attorney representing the Camden Fairview andEl Dorado school districts - listed as intervener in the case - said allowing school choice without concern for racial balance between districts would lead to “nearlyimmediate resegregation” in some parts of the state.
“It’s still a giant problem,” Roberts said. “As long as little white mamas don’t want their babies to go to school with little black babies, we’re going to have problems.”
Askew said that students transfer under the School Choice Act for many reasons, including access to higher academic standards or special programs that may not be available in their residential districts.
State lawmakers created the School Choice Act to encourage parents to take a more active role in their child’s education. Allowing students to transfer out of their residential district would provide an incentive for that district to improve and retain its enrollment, the law states.
“There is no right school for every student,” lawmakers wrote, “and permittingstudents to choose from among different schools with differing assets will increase the likelihood that some marginal students will stay in school and that other, more motivated students will find their full academic potential.”
The School Choice Act is one method through which students can attend schools outside of the district in which they reside.
Other methods - including student-specific legal transfer agreements statewide and majority-to-minority and magnet transfers included in a settlement in the Pulaski County desegregation case - will not be affected by Dawson’s ruling, attorneys said.
About 3,000 students in the Little Rock, North Little Rock and Pulaski County Special school districts cross district lines under the magnet and majority-to-minority transfer programs.
A far smaller number of students have exercised the School Choice Act provisions to transfer among the three Pulaski County districts, said Fran Jackson, the North Little Rock School District’s director of student affairs.
Superintendents throughout the state sought advice Friday about how to proceed with school-choice transfers.
Scott Smith, executive director of the Arkansas Public School Resource Center, a nonprofit organization, advised administrators who contacted him Friday not to approve further transfers under the law.
State lawmakers will likely consider how to improve school-choice law in the 2013 legislative session to prevent further court challenges, Smith said.
Dawson wrote that he “fully expects this case to be appealed in view of the important issues presented in this case.”
Gov. Mike Beebe is working closely with Arkansas Attorney General Dustin Mc-Daniel to determine how to proceed, Beebe spokesman Matt DeCample said Friday.
“When the judge says in his own opinion that he expects the appeals to continue, it's not a done deal yet,” DeCample said.
Information for this article was contributed by Cynthia Howell of the Arkansas Democrat-Gazette.
News, Pages 11 on 06/13/2012