Time is running short for a group of Blytheville parents who want to transfer their children to the smaller, nearby Armorel and Gosnell school districts under the Arkansas Public School Choice Act of 2013, their attorneys said Monday.
As a federal judge considers whether the Blytheville School District can use a desegregation case from the 1970s to support an exemption from allowing transfers under the law in the 2013-14 school year, students from other districts are also filing applications to transfer to Armorel and Gosnell schools, said the parents’ attorney, Jess Askew III. Those other students - from districts that have not claimed exemptions - could claim all of the limited number of seats in the smaller school systems by the time the Blytheville parents’ complaint is settled in court, he said.
“When we’re talking about the education of children, justice delayed is justice denied,” Askew told U.S. District Judge Kristine Baker in a court hearing in Little Rock on Monday.
That’s because the new law, which gives parents broad authority to transfer students out of the school district they reside in, allows other districts to limit the number of students they transfer in based on staffing and facilities limitations, he said. The law also limits transfers to 3 percent of a district’s total enrollment.
But Robert Coleman, an attorney for the Blytheville district, warned the judge that a preliminary injunction would be “in essence, as a practical matter, a final decision” because transfers granted under the school choice law are irrevocable until the student completes high school.
If the court halts the district’s exemption long enough to allow current Blytheville students to transfer to other districts, “they’re gone,” he said.
Baker said she plans to soon issue a written ruling on Askew’s request for a preliminary injunction in the case, which would bar the Blytheville School District from claiming an exemption from the transfer law while attorneys for both sides debate the issue in court.
Around the state, attorneys and advocates for unrestricted student transfers between districts are tracking the case.
In Monday’s hearing, Baker denied a motion to dismiss the case made by attorneys for the district, who argued that it belonged in state courts and that the parents haven’t exhausted their options to appeal rejected transfers to the State Board of Education, as the law allows.
The plaintiffs - a group of 10 parents and two grandparents - sued the district May 20, claiming that the district’s resolution to opt out of allowing its students to transfer to other districts under the new law was based on irrelevant and outdated court cases and that it was filed after the April 1 deadline set out in the statute.
The new law - which lawmakers created to replace a 1989 school-choice act that was tossed out as unconstitutional last year - exempts districts from allowing the transfers if the districts are “subject to the desegregation order or mandate of a federal court or agency remedying the effects of past racial segregation.”
Attorneys for the Blytheville School District argued Monday that its school board had to consider a 1971 desegregation case - which the court dismissed in 1978-when deciding whether it should opt out of the 2013 transfer law. Ignoring that case -which dealt with a “racially dual school system” of some schools that enrolled all white students and some that enrolled all black students - could “send Mississippi County back to the racially segregated 1960s” by allowing “white flight,” said Jay Bequette, attorney for the Blytheville district.
The plaintiffs, who are white, could not transfer their children out of the majority-black Blytheville district under the previous, 1989 version of the School Choice Act, which prohibited such transfers if the percentage of enrollment for the student’s race in the new district exceeded that percentage in the student’s resident district.Another federal court struck down that restriction as unconstitutional before lawmakers opted to replace the law.
Askew argued that the 2013 law was written “in the present tense” and that a dismissed case couldn’t support the district’s exemption. “Under the color of state law” the Blytheville district is “pinning on a tin badge” and using an irrelevant case to keep students from leaving and depriving his clients of their federally protected right to equal protection under the law, he said. And the 1971 case involved segregation within the district, not segregation between districts, Askew said.
The district didn’t cite the 1971 case when it testified at State Board of Education meetings about the approval, expansion and renewal of the KIPP Delta Public Schools’ charter school agreement with the state, he said. KIPP, which has a campus in Blytheville, enrolls some students who are zoned to attend the Blytheville School District.
Two parent plaintiffs - one a former Blytheville teacher and the other a current city council member - said they have considered selling their homes and moving to other districts after they were unsatisfied in Blytheville schools. They listed high rates of teacher turnover and failure to make adequate yearly progress under the federal No Child Left Behind Act among their concerns.
“I never thought I’d consider leaving the schools,” said plaintiff Missy Langston.“But it’s reached the point where I thought it would be irresponsible for me not to consider it.”
In addition, the 2013 law requires districts to notify the Arkansas Department of Education by April 1 if they plan to claim an exemption. Blytheville’s exemption isn’t valid because it was claimed after that deadline, Askew said.
But, attorneys for the district said, the bill wasn’t approved and signed into law until April 16. Lawmakers clearly intended to create some exemptions from completely uninhibited student transfers, they argued, and invalidating district exemptions that didn’t meet the April 1 deadline would result in ignoring lawmakers’ intent.
“The plaintiffs can’t have their cake and eat it too,” Bequette said. “There can either be school choice with exemptions or no choice at all.”
Lawmakers also intended to allow past desegregation cases to factor into districts’ decisions to opt out of the transfer law, he said.
Earlier drafts of the 2013 school-choice legislation would have allowed exemptions if a district had a “current” or “enforceable” desegregation order, Bequette said, but state lawmakers removed that language before approving the bill that was eventually signed into law.
Twenty-three of the state’s 239 districts have declared an exemption from the new transfer law. A group of parents, whose students’ transfers were rejected because of one of those exemptions, is in the process of appealing that decision to the state board, attorneys said.
Many Arkansas attorneys who deal with desegregation and educational issues attended Monday’s hearing. Those in attendance included attorneys for the Little Rock School District and Assistant Attorney General Scott Richardson.
Richardson represented the state board and the education department in the previous challenge to the 1989 law, which was led by Askew. In that case, a federal judge struck down the entire 1989 law after finding its racial restriction unconstitutional. Appeals of that decision are pending at the 8th U.S. Circuit Court of Appeals in St. Louis.
One attorney representing plaintiffs in the Blytheville case is Alec Gaines, the husband of Arkansas Democrat-Gazette Assistant Publisher Eliza Gaines.
Front Section, Pages 1 on 06/25/2013