Six families will ask the state Board of Education on Monday to allow their children to transfer out of the school district they live in under the Arkansas Public School Choice Act of 2013, despite the school system’s claim that it is exempt from the law because it has been a party in a desegregation case.
The appeals - made by parents who want to transfer their children from the Forrest City School District to the Palestine-Wheatley School District - will be the first made through a process included in the law. The board’s decision could clarify how parts of the new law will be interpreted and applied in future cases, attorneys said.
Among the greatest points of confusion is whether the board can overturn a district’s exemption in an appeal decision or whether it must limit its review to the law’s other restrictions,which relate to enrollment size and capacity.
“There’s no background on any of this to see how it’s all going to shake out,” said Jeremy Lasiter, attorney for the Arkansas Department of Education.
The Public School Choice Act of 2013 - the state’s broadest school-transfer policy - allows students to transfer out of their residential school districts with some limits. Districts can deny transfers if accepting additional students would require the addition of teachers or facilities, and transfers can make up no more than 3 percent of a district’s enrollment.
Districts annually can declare themselves exempt from the law if they are “subject to the desegregation order or mandate of a federal court or agency remedying the effects of past racial segregation.” Exempt districts are not required to accept transfers from other districts or to allow their own students to transfer out.
Twenty-three of the state’s 238 districts have opted out under the provision, citing court actions ranging from the ongoing, decades-old Pulaski County desegregation case to the landmark U.S. Supreme Court ruling in Brown v. Board of Education.
Superintendents said in resolutions filed with the Education Department that the exemptions are necessary to protect their obligations in desegregation cases. But advocates for unrestricted school transfers have said many districts are using irrelevant cases that were dismissed years ago to shield themselves from losing enrollment through the School Choice Act.
The School Board of the 2,974-student Forrest City district, which has an enrollment that is 83 percent black, voted May 14 to claim an exemption from the law. A resolution approved that day makes reference to a 1969 federal court case in which black families challenged the district’s “racially dual school system.” After the U.S. Supreme Court ordered schools to integrate “with all deliberate speed,” many districts, including Forrest City, adopted “freedom of choice” plans, which allowed students of all races to choose among racially identifiable schools. Federal courts later ruled that those plans didn’t effectively integrate schools and ordered more active desegregation plans.
The last entry in the Forrest City desegregation case’s docket was made Dec. 4, 1990, when U.S. District Judge Oren Harris approved the district’s magnet school plan. The docket does not indicate if court monitoring continues in the case, and Forrest City School administrators have not returned messages left this week.
Some appeals letters to the state board from families seeking transfer out of the district don’t mention the relevance of the desegregation case at all, instead describing their children’s classroom experiences or struggles with peers. One mother, who just moved into the Forrest City district from the Palestine-Wheatley district, said she wants to keep her children in Palestine-Wheatley schools.
A mother of black children said in her letter that she didn’t understand why, in the interest of desegregation, her children wouldn’t be allowed to transfer from the majority-black Forrest City schools into the majority-white, 671-student Palestine-Wheatley district.
But attorneys for some parents challenged the Forrest City district’s exemption, claiming the cited case was irrelevant to their clients’ desires to transfer out. In addition, they said, the district notified the Education Department of the exemption after the April 1 deadline included in the law. Because the law wasn’t signed until April 16, no districts met that deadline, which has led some attorneys to say no districts can effectively opt out of the School Choice Act for the 2013-14 school year.
“It is clearly in the best interest of the children bringing this appeal that they be able to utilize the benefits of the School Choice Act to their advantage,”attorney George Rozzell wrote in an appeal letter. “The arbitrary untimely declaration of the Forrest City School District is preventing them from doing so and is subjecting them to irreparable harm.”
The Palestine-Wheatley district entered a desegregation-related consent decree in February 1990, which a federal judge modified in March after finding that the “vestiges of past discrimination have been eliminated to the extent practicable.” Though an appeal of that decision is ongoing, the district chose not to declare an exemption, Superintendent Jon Estes said. The district has transfer applications from about 70 students in neighboring districts who want to transfer under the School Choice Act, he said.
The Education Department wrote in a May 1 memorandum to districts that the law “does not provide the [department] the authority to rule a particular exemption valid or invalid.” Such a task would be complicated because there is no complete list of districts under desegregation orders, and attorneys have differing opinions about whether cases that have been dismissed or settled provide valid justification for exemptions.
An October 2006 letter from the U.S. Commission on Civil Rights to the Arkansas Department of Education listed 11 districts that “remain under acourt order with respect to desegregation” because they have not “been granted unitary status by the court.” Forrest City was not listed in that letter.
Lasiter said Board of Education members will have to determine if they want to consider the validity of Forrest City’s exemption Monday.
“At the department level, we don’t have the authority to do that, and we didn’t want to prejudge what kind of issues come up before the state board either,” he said of putting the appeals on the board’s agenda.
Some parents have decided to take challenges to School Choice Act exemptions to court rather than before the board.
Attorneys for a group of Blytheville parents said their transfer requests were “a dead letter” because the district had declared an exemption from the law, citing a 1971 desegregation case that was dismissed in 1978.
Jess Askew III, the plaintiffs’ attorney, said in court the district had “pinned on a tin badge” and declared itself “above the law” by using an outdated case to block transfers. The case is ongoing.
Askew was also the attorney in a case that successfully challenged a racial restriction included in the 2013 act’s 1989 predecessor. That restriction prohibited school-choice transfers if the percentage of enrollment for the student’s race in the new district exceeded that percentage in the student’s resident district. Finding the restriction unconstitutional, a judge struck down the entire law. Appeals of that decision continue before the 8th U.S. Circuit Court of Appeals in St. Louis.
Lawmakers repealed and replaced the 1989 law with the 2013 version, eliminating the challenged racial restriction. The act, in effect until 2015, requires the Education Department to collect data on how many students transfer under the law “to determine if a racially segregative impact has occurred to any school district.”
There is some evidence that at least one lawmaker thought the Forrest City district might be able to use its desegregation history to justify an exemption from allowing interdistrict transfers.
Before the court struck down the 1989 law, then-Sen. Gilbert Baker, R-Conway, foreseeing the potential effects of the lawsuit, proposed a bill in the 2011 legislative session that would have eliminated the challenged racial restriction and added a list of 48 school districts “under desegregation orders” that could choose to opt out of allowing transfers. That proposed list included Forrest City, Palestine-Wheatley and 18 of the districts that have since declared exemptions from the 2013 law. The bill died in committee.
Front Section, Pages 1 on 07/05/2013