by Max Brantley
Federal Judge Robert Dawson has struck down a state law that bars interdistrict public school transfers based on race.
Specifically, the law prevents a student transfer to a district with a greater percentage of students of the transferring student's race. The case arose in Malvern, where whites were seeking to transfer to the virtually all-white Magnet Cove, a move prohibited by a 1989 state law. An earlier suit, against the 60 percent white Malvern district, was dismissed because it wasn't the proper defendant.
The state Board of Education was defendant in this case, along with Magnet Cove. Here's the 32-page ruling.
Dawson seemed to hold the door open to a consideration of race, but said it couldn't be the sole determinant, and he refused to approve a transfer for the families seeking them.
Invalidation of the entire law does bring into question the 15,600 students, about three-fourths of whom are white, currently attending school outside their districts. I'm awaiting a response from the state Education Department. The governor's office said it was conferring with the attorney general's office, which defended the state, on what comes next. Any new law tailored to overcome the judge's objections will be the work of the 2013 legislature. For now, the ruling doesn't appear to open the door to a flood of transfers this fall.
Statement from Tim Kimbrell, state education director:
This morning, a federal district court judge ruled that the Arkansas Public School Choice Act is unconstitutional in its entirety. That statute is one of a few statutes in Arkansas which allows students to attend school at a school district other than the school district in which the student resides. I have asked my staff to review all the effects of this ruling on our students, parents and school districts, including on those students who were granted school choice approval under the Arkansas Public Choice Act prior to today’s ruling. My staff will also be in consultation with the Arkansas Attorney General’s Office to determine what future legal steps, if any, the Arkansas Department of Education will take regarding this matter.
The 1989 law was a reaction to federal court rulings in Arkansas that school transfer laws must consider segregative effects, important in a state with a long history of racial discrimination, particularly in the Central High case. But the U.S. Supreme Court has changed dramatically since then. A 5-4 majority now holds that racial considerations are not proper in school assignments unless narrowly tailored for a "compelling government interest." It overturned desegregation plans in Kentucky and Washington on this reasoning.
Curing past segregation is one compelling interest. But, said the judge, there's no evidence that Malvern or Magnet Cove were subject to past orders on account of improper practices.
The Supreme Court has emphasized that “the Constitution is not violated by racial imbalance in the schools, without more.” Having identified the two compelling interests, the Supreme Court ultimately did not decide whether there was a compelling interest in the Washington and Kentucky cases; we likewise cannot find that the State’s well-intentioned effort to avoid racial imbalance in public schools is not in pursuit of a compelling interest. Nonetheless, as in Parents Involved, the Arkansas Public School Choice Act of 1989 fails the second test of constitutionally because it is not narrowly tailored.
The judge said race alone determines an ability to transfer and this "directly contradicts the Legislature’s stated goal of permitting students to choose from among different schools with differing assets that meet their individual needs."
The court noted testimony from El Dorado and from Jerry Guess, then superintendent at Camden Fairview and now leading the Pulaski County District, that race trumps all in school choice. Given free rein, white students will flee to districts with smaller minority enrollments, they said.
Wrote the judge:
This fear of “white flight” does not, in and of itself, justify the overbroad restrictions on school transfer. “Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interest they face without resorting to widespread governmental allocation of benefits and burdens of the basis of racial classifications.”
Easy to say. Hard to do. I haven't found a school law expert yet who can think of a way. Most, by the way, expected the law to be held unconstitutional because of the Supreme Court majority's enmity toward consideration of race in school assignment.
The judge noted that the state had already attempted to loosen the transfer rules to permit students to leave a failing district, regardless of racial percentages. He didn't rule out race as a consideration in school choice law, but said:
The State must employ a more nuanced, individualized evaluation of school and student needs, which, while they may include race as one component, may not base enrollment or transfer options solely on race. Accordingly, the Court finds that Ark. Code Ann. § 6-18-206(f)(1) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and hereby permanently enjoins the State of Arkansas from applying Subsection § 6-18-206(f)(1) to transfer applications under the Arkansas Public School Choice Act of 1989. But for the fact that the unconstitutional provision is not severable from the remainder of the statute (discussed infra), the Court would order Defendants to permit the transfer of the Teague and Richardson children to the Magnet Cove School District.
The decision will be appealed, the judge noted, because he hasn't given plaintiffs the relief they wanted and he's kept the door open to a law that could take race into account. He seems to say the state can balance promotion of school choice with a desire not to encourage desegregation, but must do so in a way that doesn't make race a sole determinant.