LITTLE ROCK — Thousands of students can continue to attend schools outside their home school districts under the Arkansas Public School Choice Act of 1989 after a federal judge Friday temporarily suspended a June 8 order that declared the law unconstitutional.
Under a stay issued by U.S. District Judge Robert Dawson, students who previously transferred under the act can continue attending schools outside their residential districts, and school districts can approve new transfers for qualifying students who meet the July 1 deadline for such transfers.
The stay will remain in effect until a panel of judges considers appeals.
A racial restriction — the basis of the original constitutional challenge to the law — will also remain in place, forbidding a student from transferring “to a nonresident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district.”
“This order will provide certainty for thousands of Arkansas families for the upcoming school year, and we are grateful to Judge Dawson for granting the request,” said Aaron Sadler, a spokesman for Arkansas Attorney General Dustin McDaniel.
Before Friday’s stay, attorneys and district leaders weren’t sure whether Dawson’s ruling merely prohibited future transfers under the act or if students who had already transferred under the struck-down law would have to return to their home districts at the start of the next school year.
There are 13,666 Arkansas students attending schools outside their home districts, and a majority of those students transferred under the School Choice Act, state Department of Education spokesman Seth Blomeley said.
Dawson’s suspension of his ruling will remain in place while the 8th U.S. Circuit Court of Appeals in St. Louis considers appeals by a group of seven parents who filed the original lawsuit and by the Arkansas attorney general’s office, which is defending the Education Department and the state Board of Education in the case.
The plaintiffs, whose children could not transfer because of the racial restriction, wanted Dawson to strike down that part of the law while leaving the rest of the School Choice Act in place, allowing for more freedom in interdistrict transfers.
Assistant Attorney General Scott Richardson said in court that it was important to consider the racial balance of districts when approving student transfers.
In a decades-old desegregation case, federal judges faulted the state for not taking an active role to prevent racial divisions among the Little Rock, North Little Rock and Pulaski County school districts, Richardson said.
Dawson wrote in a 32-page ruling June 8 that he understood the state’s intention but that the racial restriction in the School Choice Act violated the 14th Amendment to the U.S. Constitution because it applied race too broadly and it was not “narrowly tailored” to meet the aim of preventing segregation in school districts.
But Dawson determined the race clause could not be eliminated on its own without interfering with lawmakers’ intent, so he struck down the entire law.
After that ruling, attorneys on all sides of the case asked Dawson to temporarily suspend application of that ruling, as he did Friday, so that school districts and families could better prepare for the next academic year.
Jess Askew III, an attorney for the seven parent plaintiffs, had argued in court filings that allowing students to transfer under the law with the racial restriction in place would continue constitutional violations.
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. That transfer would violate the law’s racial restriction.
Askew declined to comment Friday.
Education Commissioner Tom Kimbrell issued a memorandum to districts Friday evening saying the School Choice Act “may once again be relied upon and followed as written.”
Legislators originally created the transfer law to foster competition among school districts and to encourage parents to take an active role in their children’s education.
“There is no right school for every student,” lawmakers wrote, “and permitting students 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.”
Askew said in court that students transfer between districts for many reasons not related to race. For example, other districts may offer programs not available in students’ home districts, or they may have stronger records of academic achievement.
Kimbrell has said that lawmakers appear poised to revisit the law in the 2013 legislative session, considering ways to allow interdistrict transfers with a more narrowly applied measure to prevent segregation.
It’s a move Dawson encouraged in his June 8 ruling.
“The state must employ a more nuanced, individualized evaluation of school and student needs, which, while they may include race as one component, may not base enrollment and transfer options solely on race,” he wrote.
Under a schedule created by the 8th U.S. Circuit Court of Appeals in St. Louis, the first briefs in the appeals of Dawson’s ruling are due Aug. 3.
Information for this article was contributed by Cynthia Howell of the Arkansas Democrat-Gazette.
Front Section, Pages 1 on 06/23/2012