Bills would rewrite School Choice Act

LITTLE ROCK — Although a panel of federal judges is still deliberating, lawmakers have filed two bills to rewrite the Arkansas Public School Choice Act during the 2013 legislative session.

Both bills remove a section of the law at the center of a case pending before the 8th U.S. Circuit Court of Appeals. The court heard oral arguments in St. Louis on Jan. 17 after a lower court threw out the entire school-choice law last summer. That order has since been stayed.

The School Choice Act allowed students to transfer out of their resident school districts with few exceptions. Transfers were prohibited if the percentage of enrollment for the student’s race in the new district exceeded that percentage in the student’s resident district.

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.

Sen. Joyce Elliott, D-Little Rock, filed Senate Bill 114 Wednesday, which takes out the percentage requirement. It would allow students to apply to attend another district as long as the transfer doesn’t conflict with a federal desegregation order and doesn’t adversely affect or promote the desegregation of either school district.

The bill doesn’t cap or limit when a transfer can occur or how it will affect the racial makeup of either district.

That may be best defined through rules created by the Board of Education, Elliott said.

“I don’t know that it would be wise necessarily ... to put that standard in the bill because it could become more fluid as we go along,” she said. “We’re working on it. Who knows, next week it could show up in the bill.”

The bill will change as the session continues, but lawmakers need to address the issue this year because there are unanswered questions, Elliott said.

“We don’t pretend it’s perfect. We know we have some more work to do, likely, but we had to get started somewhere,” she said.

Arkansas Department of Education data show that 12,691 of the state’s 471,867 students transferred out of their resident school districts in the 2012-13 school year. The department has said the School Choice Act is the most popular policy used to transfer.

In June, U.S. District Judge Robert Dawson ruled in the Malvern-Magnet Cove case that the racial restriction violated the white parents’ 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.

Lawmakers have no guarantee when the appeals panel will rule or how it will decide, Elliott said.

“If the court rules and we’re happy with it, fine. But if we’re not, at least we have perhaps another state remedy, a legislative remedy,” Elliott said.

“We’re just trying to be proactive and not just panic if we get a ruling we think is going to ruin everything.”

Gov. Mike Beebe’s spokesman Matt DeCample said the governor hadn’t reviewed Elliott’s legislation Wednesday.

“As with other school choice legislation, it will be hard to make any definite determinations until we get a ruling from the 8th Circuit,” he said.

Under the bill, districts can petition the state Board of Education to be exempt from the new school-choice law if the transfers would lead to desegregation or create segregation in the district.

It also states that districts under a federal desegregation order are exempt from the law if the federal court determines the transfers would be inconsistent with desegregation efforts.

Sen. Johnny Key, R-Mountain Home, filed similar legislation Jan. 17. SB65 would limit students to transferring once per school year.

Key’s bill also specifies that if the law conflicts with a judicial decree or a court order dealing with racial segregation, the decree or order shall supersede the law.

He said the Legislature shouldn’t wait until the court decides if the school-choice law is constitutional.

“We’ve seen on education issues and other issues if you wait on the court, you don’t know how long you’re going to be waiting. We have families that are nervous because they’re uncertain of what’s going to happen,” he said. “We need to do something now to give those families certainty. If we wait on the court, it could be months and months.”

Key is also chairman of the Senate Education Committee. He said he expects more legislation on school choice to be filed in the coming weeks.

“We just need to get them all out in the public eye and start analyzing which one works best,” Key said.