A panel of judges wants to know whether an appeal of a lower court’s decision to throw out the Arkansas Public School Choice Act of 1989 on constitutional grounds is moot after state legislators recently repealed and replaced the law.
The 8th U.S. Circuit Court of Appeals in St. Louis on Monday asked attorneys in the case to weigh in on the matter in briefs to be filed by May 22.
A three-judge panel from that court heard oral arguments Jan. 16 over appeals of U.S. District Judge Robert Dawson’s decision to strike down the state’s broadest school transfer law over constitutional concerns about a racial restriction included in the rule. The panel has not issued a ruling.
“Briefs should address,among other points of interest to the authors, whether the conduct challenged in the complaint continues under the new law,” the court wrote in the order, citing previous cases in which state legislatures took action before judges made final rulings in court challenges to laws.
The Arkansas P ublic School Choice Act of 1989 - repealed by legislators in an act signed by Gov. Mike Beebe on April 16 - allowed students to transfer out of their resident school districts with a few exceptions. Those exceptions include a prohibition of 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.
Dawson sided with a group of parents of white children who were forbidden transfers from Malvern to Magnet Cove schools under the former law and who argued that the exemption used race too broadly. In a departure from their wishes, he invalidated the entire law when he determined that the offending racial restriction could not be severed from the surrounding language in the law.
Dawson stayed his decision, halting its application while the higher court considered appeals.
The Arkansas attorney general’s office, defending the former law on behalf of the state Board of Education, argued that the racial restriction was a constitutional method of promoting racial balance among the state’s school districts, citing previous decisions in a decades-old desegregation case involving the state and the Little Rock, North Little Rock and Pulaski County Special school districts.
In the time since the appeals court heard oral arguments over Dawson’s decision, state legislators replaced the law involved with the Public School Choice Act of 2013, which mimics much of the language of the previous statute and replaces the racial restriction with a provision that allows a district to opt out of allowing transfers under the law if the district “is subject to the desegregation order or mandate of a federal court or agency remedying the effects of past racial segregation.”
The new law also says transfers granted under the 1989 School Choice Act will remain in effect, even though that act has been repealed.
Jess Askew III, attorney for the parents, said he will study the new law’s effects on his clients’ ability to transfer before writing his brief.
“We do not think the entire case is moot,” he said.
Other attorneys in the case, including those at the attorney general’s office, said Monday that they were studying the judges’ order before determining how to proceed.
The portion of the new law that “grandfathers in” transfers allowed under the previous law gave some attorneys pause, said Allen Roberts, an attorney for the Camden Fairview and El Dorado school districts, which intervened in the case.
It can be problematic to base a law on a previous statute ruled unconstitutional by the courts, he said. But those students whose existing transfers were “grandfathered in” would likely be allowed to transfer under the new law, eliminating the concern, he said.
“I don’t see how anybody who transferred out in the first place [under the 1989 law] could not go,” Roberts said. “Some of the people who didn’t get to go in the first time still won’t get to go, but it’s for an entirely different reason.”
Askew’s clients, for example, would be prohibited transfer under the new law if the Malvern School District opts out. Their transfers may also be blocked under other restrictions in the new law, which limits school-choice transfers to 3 percent of a district’s enrollment and allows districts to set limitations if they don’t have adequate facilities or teaching staff to add students.
Four districts have notified the Arkansas Department of Education that they plan to claim an exemption from allowing transfers under the new law, said Phyllis Stewart, chief of staff for the department. They are Camden Fairview, El Dorado, Blytheville and Hope.
Districts have until May 17 to notify the department if they consider themselves exempt, according to a memo from department attorney Jeremy Lasiter.
Education Department data show 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 most popular method of transfer.
Front Section, Pages 1 on 05/07/2013