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Choice ruling leaves districts with dilemma

<p>Roy Ockert</p>

Roy Ockert

Federal judge’s ruling on school choice leaves superintendents with dilemma

A federal judge’s ruling has left school superintendents all over Arkansas with a dilemma involving more than 15,000 of their students. U.S. District Judge Robert Dawson on June 12 declared the Arkansas Public School Choice Act of 1989 unconstitutional and enjoined the state from applying it, effective immediately.

While there is some question about what exactly that means, the ruling certainly muddies plans for the 2012-13 school year. Attorneys for the state and for the families who challenged the race restriction provisions of the school choice law have both asked Dawson to stay his order pending appeal.

The problem is that the plaintiffs got more than what they wanted, and the state can’t practically fix the defects in the law that Dawson identified until the General Assembly meets next January.

A group of seven parents of children attending the Malvern school district filed a lawsuit in 2008 after their requests for transfer to the nearby Magnet Cove district were denied under the law. All parents were members of a group calling itself Parents for School Choice, and the school districts are in Hot Spring County.

The main issue at dispute is that the school choice law prohibits a student from transferring from his or her resident district to a district with a significantly higher proportion of the student’s race. At the time the Malvern district’s enrollment was 60 percent white, and Magnet Cove’s was 95 percent. The plaintiffs are all white, and two sets of parents were specifically refused under the law’s racial division provision.

After their appeal to the state Board of Education was denied, all seven parents sued the state board, the state Department of Education and the Magnet Cove school board. Along the way the Camden Fairview and El Dorado school districts were allowed to intervene.

In his final ruling, Dawson found that one specific provision violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. The provision says: “No student may transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s race except” as provided elsewhere in the law.

That’s what the plaintiffs wanted, but Dawson agreed with the intervening districts’ contention that the provision is so critical to the entire law that it can’t be “severed” — in other words, that the law couldn’t stand without it.

Indeed, he’s right because without the race restriction the school choice law would allow, even encourage violations of many other laws designed to desegregate the nation’s public schools since the 1954 landmark decision of the U.S. Supreme Court in Brown v. Board of Education of Topeka.

Since then courts across the land have clamped down on school districts that refused to desegregate according to race and on laws that were contradictory to desegregation efforts. School choice laws that don’t take race into consideration can foster “white flight” and contribute to racial imbalance.

On the other hand, school choice laws are designed to foster better schools. Here’s what the 1989 sets as its purpose: “The General Assembly finds that the students in Arkansas’ public schools and their parents will become more informed about and involved in the public educational system if students and their parents or guardians are provided greater freedom to determine the most effective school for meeting their individual educational needs.”

In theory that gives those who operate each school district an incentive, albeit a negative one, to provide a high-quality education; otherwise, the district will lose students and state funding.

In practice school choice requests come for a variety of reasons, many of which have nothing to do with the quality of education. For the 2011-12 school year 15,682 students were enrolled in nonresident districts under some form of choice transfer — just under 3.5 percent of all public school students. About 76 percent of the transfers were white, 17 percent were black. Overall, the state’s public school enrollment is 65 percent white and 21 percent black.

The state and the intervening districts argued that such statistics show the importance of race in transfer decisions.

In fact, the Legislature has twice amended the 1989 law in efforts to deal with the racial issues, and state Department of Education rules over the years make administration quite complicated.

For example, an exception to the race restriction can be granted if both resident and nonresident districts are within 25 percent of the racial composition of the county’s. Another exception is allowed when neither district has a minority population above 10 percent.

Dawson relied heavily on a 5-4 U.S. Supreme ruling that said racial considerations are not proper in school assignments unless “narrowly tailored” for a “compelling government interest.” That’s confusing enough, but it also appears to undermine the many federal court desegregation plans in force for years in many cities across the country, including Little Rock.

It can be argued that preventing racial segregation is a “compelling interest,” but Dawson found that choice decisions can’t be made on the basis of race alone.

The question that needs to be answered quickly is whether the ruling affects all choice assignments or just those in the future. As one Jonesboro area superintendent pointed out, that process is ongoing, or at least it was.

•••

Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.

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