by Max Brantley
The 8th U.S. Circuit Court of Appeals today dismissed as moot the lawsuit challenging an Arkansas school choice law because the legislature has passed a new school choice law. It is heading, too, for months if not years of court consideration.
This is case from Malvern where white parents were being prevented from transferring children to a neighborhing district, Magnet Cove, with a higher enrollment of white students because of an Arkansas law that prohibited transfers that harmed desegregation efforts. A federal district judge said the racial component ran afoul of more recent U.S. Supreme Court rulings and struck the law down, but held the ruling in abeyance for the appeal. In the interim, the legislature passed an open-door school choice law that still retains the ability for some school districts with past desegregation court issues, to opt out.
Arguments and legal actions have already arisen from proponents of unfettered school transfers who've objected to impediments to transfers in Forrest City and Blytheville.
Proponents of unlimited transfers tried to shoehorn the racial element retained in the new 2013 law into the appeal of the Malvern case. Said the court:
This feature of the 2013 Act does not make the Parents’ lawsuit any less moot because the Parents no longer have the requisite “personal stake” in the lawsuit, even taking into account the new exemption process. In their supplemental brief, the Parents argued that the remedy they seek in the lawsuit is not moot because an injunction ordering their children transferred pursuant to their 2010 applications would be greater relief than they could obtain under the 2013 Act. The Educators then submitted documents showing that the Parents applied for transfers under the 2013 Act, and their applications were approved. Unlike the 1989 Act, the 2013 Act expressly provides that “[a] transfer student attending a nonresident school under this subchapter may complete all remaining school years at the nonresident district.” Thus, as the Parents later conceded, the 2013 Act affords their children the full prospective relief they seek in the lawsuit.
Parents also objected that the legislature could change the law in 2015. But the court said:
In this case, we share the Parents’ view that the 2013 Act’s expiration almost guarantees the General Assembly will revisit the issue of public school choice in 2015. But we see no indication it intends to reenact a statewide, exclusively racebased limitation. Indeed, all objective legislative signals are to the contrary.
The decision orders that the lower court order be vacated and the suit dismissed. The fight will continue. The lead lawyer fighting for unlimited choice now and forever in this case, Jess Askew, is closely associated with the Walton- and Hussman-backed school "reform" efforts and is in court already over Blytheville's refusal to allow transfers to a majority white district because of its past time in federal court on desegregation issues.
The decision today means there's no binding precedent relative to the use of race in crafting school choice policies in Arkansas, including the now inoperative old law.