Court urged to allow new district transfers

— A federal judge should allow all interdistrict transfers under the Arkansas School Choice Act, which he struck down this month, regardless of a student’s race or previous eligibility to switch schools under the law, attorneys said Wednesday.

Allowing transfers to continue only if they occurred before U.S. District Judge Robert Dawson shot down the law’s racial restriction would effectively continue the law’s constitutional violations, Jess Askew III and Andi Davis, attorneys for a group of parents who have challenged the restriction in court, said in a response to the state’s motion for a “limited stay.”

Lawyers for the state and two intervening districts proposed allowing previously approved transfers to continue but forbidding new ones after Dawson ruled June 8 that the race restriction couldn’t be severed from the School Choice Act. That led him to forbid the state from applying the law altogether.

The law allowed thousands of students to transfer out of their home school districts with the restriction that “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.”

Dawson determined that that restriction violated theU.S. Constitution because its use of race was too broad and not “narrowly tailored” to the state’s goal of preventing segregation in school districts.

Askew and Davis, representing seven parents, have argued that the race restriction is unconstitutional and that it can be separated from the rest of the act, effectively expanding the ability of students to transfer out of their resident districts.

“The Equal Protection Clause does not permit the State to treat citizens differently because of their race, yet the State’s requested stay in effect does just this,” they wrote Wednesday in response to motions for stay by the state and the El Dorado and Camden Fairview districts.

“Appellants’ inability to enjoy the transfers they sought two years ago under the stay as requested by the State would be traceable only to their race.”

That’s because the plaintiffs’ children were previously denied transfer under the act because they are white, Askew and Davis wrote.

The children sought transfer from the 2,094-student Malvern district, which is 60 percent white, to the 636-student Magnet Cove district, which is 95 percent white.

There are 13,666 Arkansas students attending schools outside of their home districts, according to the Arkansas Department of Education.

While the exact number cannot be determined, the greater number of those students transferred under the School Choice Act, the department has said.

Askew argued that halting use of the transfer law abruptly would cast “uncertainty and irreparable harm on thousands of Arkansas schoolchildren and families and countless school districts” as they enterthe 2012-2013 academic year.

Attorneys for the intervening districts argued in court filings Monday that allowing the transfers to restart without the racial restriction could lead to “resegregation” of many school districts. They proposed allowing previously approvedtransfers to continue under the law until state lawmakers can amend or replace it.

Assistant attorney general Scott Richardson wrote last week that the state Education Department and the attorney general’s office believe that student transfers allowed before the ruling were legal at the time they were granted.

Richardson filed a notice that he plans to appeal the decision to the 8th U.S. Circuit Court of Appeals in St. Louis on behalf of defendants the Arkansas Department of Education and the Arkansas Board of Education.

Askew has also filed notice of appeal.

Attorneys for the intervening districts and the Magnet Cove School District, also a defendant, have said they do not intend to appeal Dawson’s ruling.

Northwest Arkansas, Pages 7 on 06/21/2012

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