Arkansas's public school system could be upended by events this week.
Wednesday, the 8th Circuit U.S. Court of Appeals hears oral arguments in the case in which a federal judge has ruled the state school choice law unconstitutional. The fractured U.S. Supreme Court ruling on desegregation cases in other states led Judge Robert Dawson to conclude the explicit racial component in Arkansas school assignment law was no longer permissible and invalidated the law. He said concern about segregation was a primary consideration in the law and couldn't be "severed," to allow free and unfettered interdistrict school transfers without consideration of race.
The case specifically contested the law's bar of transfers by white students in Malvern to a neighboring district with a higher percentage of white students.
The 8th Circuit could uphold the original law (unlikely, though arguable); uphold Dawson, which would end all school choice for the time being (likely), or uphold Dawson and sever the race component and open the door to a wild world of unfettered school choice (unlikely).
Some 15,000 students already participating in school choice hang in the immediate balance.
Meanwhile, the Arkansas legislature has begun a new session and it will consider a new school choice law that could make the court case moot. Sen. Johnny Key leads the Republican-controlled Education Committee. He favors a law that would allow unlimited transfers, except in school districts with pending desegregation cases (a relative handful). This, many school superintendents fear, would set off a race-related exodus from many districts, particularly in places like Malvern and Camden and El Dorado.
Wide-open choice would also encourage transfers for any number of other non-educational reasons — including athletics. Sports recruiting would become rampant. The Arkansas Activities Association would be powerless to stop it. There'd be larger complications. How to rationally plan enrollment every year? What would become of the intricately drawn Lakeview school funding case-inspired plan for equalizing school facilities? It would be turned on its ear.
School administrators have drafted an alternative piece of legislation, though many of them prefer no transfers from home districts at all. It would restate, in a more general way, the interest in racial diversity that drove the legislation in the first place along with transfers for educational reasons. Arkansas, after all, is a southern state that had to be dragged — by federal troops in the most famous case — to obey the Constitution on equal educational opportunity. The proposal also injects national origin as a consideration in guaranteeing a constitutionally sound system of "quality desegregated education."
Ethnic consideration could build some political support from Arkansas school districts that might fear an exodus of white students from growing Latino populations.
Race and ethnicity aside, unfettered school choice imperils many school districts — economic engines of dozens of small communities. A richer neighbor with a shinier football practice facility could drain students, too, for example.
An accumulation of these diverse reasons to oppose unlimited school transfers might be the only hope to stop momentum built by what I call the Billionaire Boys Club. Walton money primarily, but also contributions from the Hussman, Stephens and Murphy empires, has gone to create lobbying groups and elect legislators, primarily Republican, friendly to the cause of "choice."
Unlimited school transfers, charter schools (largely unregulated and unanswerable to voters) and private school vouchers are all tenets of the billionaires' faith. But if a Republican legislator who customarily worships at the Cathedral of Cash believed his vote could wreck his local school district (think Springdale, with a large immigrant population and many neighboring school districts that white parents might find more compatible with their "culture" if transfers were granted on demand) faith in the billionaires might fall to a practical consideration — election. Think Catholics and contraception.