by Max Brantley
The Arkansas legislature just passed a new school choice law to replace one contested in federal court in a case that began over students who wanted to transfer from Malvern to whiter schools in Magnet Cove.
Is that old law now moot? That's the question the 8th Circuit U.S. Court of Appeals posed today in a brief order asking for supplemental briefs in the case:
The court believes that supplemental briefing would be helpful in this case in light of the Arkansas legislature's repeal of the Arkansas Public School Choice Act of 1989 and passage of the Public School Choice Act of 2013. Parties and intervenors, and any interested amici, are directed to submit simultaneous supplemental briefs of no more than 15 pages due May 22, addressing whether this appeal is moot in light of the enactment of the Public School Choice Act of 2013.
Briefs should address, among other points of interest to the authors, whether the conduct challenged in the complaint continues under the new law, see N.E. Fla. Chapter of Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 662 & n.3 (1993), the application of the "voluntary cessation doctrine," see, e.g., Northeastern Florida, 508 U.S. at 661-62, City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982), and, if the appeal is moot, the appropriateness of vacatur of the district court's judgment. See, e.g., U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994).
A federal judge had said the old Arkansas law, which prohibited transfers that contributed to resegregation, didn't meet race-blind dictates of the U.S. Supreme Court. In in the interim, the thousands of children already using the choice program were allowed to stay at the transfer districts.
The legislature passed compromise legislation. It allows free choice, with some asterisks. 1) There's a cap on transfers of 3 percent of enrollment; 2) districts can opt out of choice if they say they are "subject to the desegregation order or mandate of a federal court or agency remedying the effects of past racial segregation.”
Several schools districts, such as El Dorado and Camden Fairview, have already served notice that they will opt out of choice. These are districts that have long contended that free choice would cause resegregation. Other districts are considering an opt-out. School districts in Pulaski County remain enmeshed in a desegregation case, particularly the Pulaski County Special School District, which has yet to be declared "unified," or desegregated. UPDATE: These four districts have officially submitted opt-out resolutions — Blytheville, Camden-Fairview, El Dorado and Hope. The El Dorado school board's resolution is typical of what can be expected.
A larger question looms, I'm told, about what exactly the opt-out provision means. How recent must a district have been in court? One lawyer who's active in school law has even argued that the entire state, given the mandate to end segregation. The four districts that have already asked to opt out all cite the 1954 Brown v. Board of Education decision and the 1969 directive from the federal Department of Health Education and Welfare to end segregated schools. These antecedents apply, at least arguably, to any district in the state.
At a minimum, the ambiguity of the law is certain to prompt school board discussions — and likely some lawsuits — in the future. Parents might have cause to seek intervention for or against choice when administrators, for political reasons, make decisions with which they disagree. Springdale is a particular sore spot. It's never been involved in a school desegregation lawsuit, but its leaders have long feared it could lose hundreds of students to neighboring school districts fleeing Springdale's rising Latino population.
The law provides no review process on these opt-out requests. The state Education director apparently is merely expected to accept them. Else that state official take the risk of being seen as moving back into the state's well-established history of abetting segregation.
Meanwhile, still, there's the old law. Some legislators had favored waiting for a decision there before moving ahead with this year's legislation. My education sources say it's generally believed that the old law is moot thanks to the new law and that the 8th Circuit will never rule on the lower court's ruling on the old law.
But that's what briefs and decisions are for. The wheels of justice are grinding.