A federal appeals court Thursday tossed out appeals of a lower court’s decision to throw out the Arkansas Public School Choice Act of 1989, calling the challenges moot because the state Legistlature has since repealed and replaced the law.
The plaintiffs - a group of families whose requested transfers from the Malvern School District to the Magnet Cove School District were barred under a race-based restriction inthe 1989 law - have since been allowed to transfer under the new statute, providing them the relief they sought in their original suit, the 8th U.S. Circuit Court of Appeals in St. Louis ruled.
The appeals court vacated U.S. Circuit Judge Robert Dawson’s June 2012 ruling and ordered Dawson to dismiss the case.
“By rewriting the entire statute and eliminating all explicitly race-based limits on school transfers, the General Assembly evidenced an intent to move away from this constitutionally sensitive issue so as to preserve the benefits of school choice,” Judge James Loken wrote on behalf of the three-judge 8th Circuit panel.
The School Choice Act is the state’s broadest school transfer law, allowing children to transfer out of their residential school districts with fewer restrictions than other methods of transfer.
Dawson, in his original ruling, struck down a restriction in the 1989 law that said “no student may transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds thatpercentage in the student’s resident district.” Citing a 2007 U.S. Supreme Court decision related to a Seattle school assignment plan, Dawson ruled in 2012 that any legal restriction based on race must be “narrowly tailored to serve a compelling government interest,” and that the 1989 law’s race restriction was too broadly written to withstand such scrutiny. After determining that the restriction couldn’t be separated from the surrounding statute, he threw out the entire law.
The plaintiffs - who said the restriction unconstitutionally used race as a factor - had appealed Dawson’s decision in January oral arguments in hopes of having the rest of the 1989 statute restored. The attorney general’s office - which defended the restriction as necessary to prevent segregation between districts - had asked the 8th Circuit Court to restore the entire law, including the race clause.
But because thousands ofArkansas students use the law to transfer each year, state lawmakers repealed and replaced the law before the 8th Circuit ruled on the appeals. The School Choice Act of 2013 does not include the race restriction and allows districts to declare themselves exempt from allowing transfers under 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.”
The 2013 School Choice Act is valid until 2015, when lawmakers have said they will revisit it to determine if they should renew or amend it.
In briefs requested by the 8th Circuit, attorneys for the state and intervening districts have said all appeals of Dawson’s decision should be considered moot.
Jess Askew III, the parents’ attorney, had asked the court to rule on the appeals to provide clarity for futurelegislative decisions.
“The State of Arkansas will certainly be ‘free to return to [its] old ways’ absent a resolution of the question by this Court,” Askew wrote in a May brief.
The 8th Circuit panel disagreed with Askew in its Thursday ruling.
“Without question, the General Assembly will need to address these difficult issues again in 2015 if it decides to enact a new statute extending the perceived benefits of broadly available public school transfers. But there is no reason to believethe General Assembly will simply reinstate [the racial restriction] of the 1989 Act,” Loken wrote on behalf of the panel.
“Rather, as judges, we must assume the General Assembly will properly perform its legislative duty by taking into account the diverse political views of its interested Arkansas constituents - parents, students, educators, and others - and by weighing relevant constitutional decisions such as [the Seattle case], in fashioning a new law that will then be subject to judicial review.”
School choice laws have long been a contentious issue in the state, triggering disputes between advocates for relatively unrestricted school transfers and those who argue that the state has an interest in limiting movement between districts in certain circumstances.
Attorneys and district leaders have said the 2013 School Choice Act is difficult to interpret and apply.
Askew also represents a group of Blytheville parents in a federal court challenge of the new law. Those parents argue that the Blytheville district illegally claimed an exemption from the law by citing an irrelevant desegregation case that was dismissed in the 1970s.
Another group of parents, who unsuccessfully asked the state Board of Education to overturn the Forrest City School District’s decision to exempt itself from the law and bar their children’s attempts to transfer out, have asked a Pulaski County Circuit Court to overturn that exemption.
The other judges who made Thursday’s ruling were Diana Murphy and Steven Colloton.
Northwest Arkansas, Pages 9 on 07/26/2013