Judges dig into clause on race

On school choice, state intent focus

Thursday, January 17, 2013

— A three judge panel hearing arguments about the Arkansas Public School Choice Act inquired Wednesday into what lawmakers intended when they wrote that the state should allow students to attend schools outside their home districts as long as such transfers “would not adversely affect the desegregation of either district.”

An attorney for parents who successfully challenged the law in court said lawmakers were adhering to a narrower legal definition of desegregation, referring to districts under federal-court desegregation orders.

But lawmakers may have been using the term in a broader sense, referring to “racial balancing” and efforts to preserve adiverse blend of students in each Arkansas school district, said Steven Colloton, a judge on the 8th U.S. Circuit Court of Appeals who is from Des Moines, Iowa.

Lawmakers’ intent in drafting the School Choice Act - the state’s broadest school transfer law - will be a factor when the federal appeals court, which met Wednesday in St. Louis, decides whether it should overturn a lower court’s decision to toss out the entire law after finding part of it unconstitutional.

At stake is the future of thousands of Arkansas students who transfer out of their home school districts under the law, which a state lawmaker filed a bill to amend Wednesday.

Stating that providing greater educational choices increases parental involvement and causes schools to be more responsive to students’ needs, the School Choice Act allows students to transfer out of their resident school districts with few exceptions. Those exceptions include a prohibition of such transfers if the percentage of enrollment for the student’s race in the new district exceeds that percentage in the student’s resident district.

U.S. District Judge Robert Dawson in June, siding with a group of parents whose white children were denied transfer to a majority white district under the statute, ruled that the racial restriction violated their constitutional right to equal protection. Finding that he could not remove the offending clause without disrupting lawmakers intentions to “not adversely affect the desegregation of either district,” Dawson struck down the entire statute.

He later stayed that ruling, allowing the whole law to remain in effect while the higher court considered appeals.

Attorneys for the defendant in the case, the Arkansas Board of Education, want the court to uphold the entire law, including the racial restriction.

Parents’ attorney Jess Askew III argued that the lawmakers’ intent was served by another part of the statute, which prohibits transfers that conflict with court-approved desegregation plans. He asked the court to restore the school-choice statute, striking out only the offending racial clause.

“Under state law, the rule is you sever the offending provision if any part of the statute may stand notwithstanding the offending provision,” Askew said. “This is an education reform statute, and the education reform portions of this act stand and are indeed enhanced in their effect when [the racial restriction] is enjoined.”

The offending restriction is a “racial balance” clause, and lawmakers didn’t have an intent of “racial balance” when they wrote the law, Askew said.

“You say that, but that can’t be right. It’s there,” said Judge James Loken of Minneapolis, referring to the statute’s call to not adversely affect districts’ desegregation.

Also hearing the case was Judge Diana Murphy of Minneapolis.

Arguments in the case have centered on a ruling by the U.S. Supreme Court that found a race-based studentassignment plan in the Seattle School District unconstitutional because it used race too broadly as a factor and because the district did not prove a “compelling interest” in considering race when it placed students in schools.

“You’re trying to tell us that desegregation has a very narrow meaning,” Loken told Askew, adding that opinions in the Seattle case found cause for desegregation efforts in a broader manner, not just limiting its application to school districts placed under federal court orders after they were found to be intentionally segregating students.

Arkansas Assistant Attorney General Scott Richardson, representing the state Board of Education, said that the state wants to offer parents educational choices but has a responsibility to restrict those choices when a student’s transfer might have a segregative effect between districts.

Arkansas lawmakers approved the School Choice Act in the same session they approved a “contentious settlement” in the Pulaski County school-desegregation case, under which the state has paid more than $1 billion to fund programs such as magnet schools and majority-tominority student transfers to remedy segregation within the Little Rock, the North Little Rock and the Pulaski County Special school districts, Richardson said.

In that decades-old case, federal judges labeled the state a “constitutional violator,” finding it did not do enoughto prevent segregation among the three districts.

The state must consider how its policies affect racial balance between districts to avoid repeating behaviors the court has labeled wrong in the past, Richardson said, adding that the School Choice Act was designed to promote “integrative transfers” that would make districts more racially diverse.

Parents in the case wanted to transfer their children out of the 2,094-student Malvern district, which was 60 percent white at the time of their request, to the 636-student Magnet Cove district, which was 95 percent white.

At one point, 200 parents wanted to transfer their white children out of Malvern, the only school district in Hot Spring County with “an African-American enrollment of any significant size,” Richardson said.

“We think that would raise a serious segregation issue,” he said. “The starting point for segregation cases, for desegregation, is racial balance, is if there are racially identifiable schools.”

Loken said Richardson’s discussion of desegregation sounded decades-old.

“At some point, 25 years, 50 years, we ought to be able to achieve the colorblind objective,” he said.

Richardson agreed. “My biggest hope for this case is that we will get some instruction for the state of Arkansas about when that happens,” he said, noting court rulings in the Pulaski County case.

Chris Heller, an attorney who represents the Little Rock School District in the Pulaski County desegregation case, said that in the case in question, the wrong legal precedent had been used to determine whether the state could use a student’s race as a factor in restricting school transfers.

The Seattle case involved a district attempting to prevent potential segregation, which meant the court used a stricter standard to determine whether the district’s student-assignment system was appropriate, he said. But the Arkansas case involves a state working to remedy past wrongs, which means the court should use a more permissive standard to determine whether race can be a factor, said Heller, who argued after filing an amicus brief in the appeals.

While the state argued that the whole School Choice Act should be maintained, an attorney representing Magnet Cove and the intervening Camden Fairview and El Dorado school districts argued that if the court strikes down the racial restriction, it should strike down the entire law.

Not doing so would lead to “rapid resegregation” in certain districts, attorney Allen Roberts said.

“The state cannot encourage private persons to accomplish what it itself is constitutionally prevented from accomplishing,” he said.

Arkansas Department of Education data shows that 12,691 of the state’s 471,867 students have transferred out of their resident school districts in the 2012-13 school year. While it is not possible to determine how many of those students used the School Choice Act, the department has said the policy is the mostpopular method of transfer.

Even before appeals were filed in the case, Arkansas lawmakers began discussing how to modify the School Choice Act, Education Commissioner Tom Kimbrell said after the court arguments.

Kimbrell said lawmakers had planned to file a bill that eliminated the racial restriction as a “starting point” for discussions about how to rewrite the law, and that they will likely amend it.

Sen. Johnny Key, RMountain Home, filed a bill Wednesday that would eliminate all restrictions in the act and add a sentence that says if the school-transfer law conflicts with “an enforceable judicial decree or court order remedying the effects of past desegregation, the court order or enforceable judicial decree would govern.”

The bill also would limit transfers under the School Choice Act to one per studentper year.

Key said he favors “open choice” but that the state must find a constitutional solution.

Parents challenging the School Choice Act were originally represented by Hot Springs lawyer Andrea Davis, who was later joined by Askew. Attorney General Dustin Mc-Daniel, a gubernatorial candidate, has since admitted to having an “inappropriate relationship” with Davis but has insisted their interactions did not compromise his office’s actions in the case.

Davis remains a listed attorney on the case but was not at Wednesday’s hearing.

Information for this article was contributed by Michael Wickline of the Arkansas Democrat-Gazette.

Front Section, Pages 1 on 01/17/2013